CASE OF SILUMIN S.R.L. v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF SILUMIN S.R.L. v. THE REPUBLIC OF MOLDOVA

(Application no. 35393/11)

JUDGMENT
 

STRASBOURG

16 January 2025

This judgment is final but it may be subject to editorial revision.

In the case of Silumin S.R.L. v. the Republic of Moldova,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 35393/11) 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”) on 18 May 2011 by a company constituted under Moldovan law, Silumin S.R.L. (“the applicant”), which was represented by Mr I. Ungurean, a lawyer practising in Chişinău;

the decision to give notice of the complaint concerning access to court to the Moldovan Government (“the Government”), represented by their acting Agent, Ms D. Maimescu, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 12 December 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged breach of the applicant company’s right of access to a court, contrary to the requirements of Article 6 § 1 of the Convention.

2.  “Chris” SRL (hereinafter called Chris) is a private company registered in the Republic of Moldova. Since 1998 two groups of its owners (on the one hand, D. and her daughter (hereinafter collectively referred to as D.) and on the other, the A. spouses) were involved in a legal dispute for the control of Chris. Following a number of court decisions, by a final decision of 27 November 2006 the A. spouses were confirmed as owners of 50.97% of the company. D. lodged an application with the Court, which on 3 March 2009 found a breach of Article 6 § 1 and of Article 1 of Protocol No. 1 to the Convention because the decision of 27 November 2006 had been adopted in violation of the principle of legal certainty (Eugenia and Doina Duca v. Moldova, no. 75/07, 3 March 2009). On 9 March 2009 D. asked the Supreme Court of Justice to annul its judgment of 27 November 2006.

3.  On 26 October 2009 the Supreme Court of Justice annulled its decision of 27 November 2006. D. were recognised as the majority owner of Chris.

4.  In the meantime, on 8 September 2009 Chris concluded a rental contract with the applicant company, under which the latter rented three buildings belonging to Chris.

5.  On 19 April 2010 the Supreme Court of Justice rejected D.’s request to interpret the meaning and extent of the judgment of 26 October 2009, in particular whether the documents signed and other acts by the A. spouses during 2006‑2009 in the name of Chris had been lawful or without any legal basis. The court found that that judgment had not dealt with the substance of the case, while the interpretation sought affected that substance, and that the judgment contained no contradictions requiring interpretation. At the same time, the court accepted D.’s request to order the A. spouses to remove all obstacles to D.’s access to the property owned by Chris.

6.  On 20 December 2010 the Supreme Court of Justice accepted the request by the bailiff to interpret the judgment of 26 October 2009. It found that the part of the judgment of 19 April 2010 requiring the A. spouses to remove all obstacles to D.’s access to the property of Chris could not be enforced in view of the presence of the applicant company on that property on the basis of the rental contract. The court therefore interpreted its judgment of 26 October 2009 inter alia by ordering the applicant company to vacate the premises.

7.  On 10 January 2011 the applicant company appealed that decision. It noted that it had found out about the decision on 4 January 2011, in unrelated court proceedings.

8.  On 15 March 2011 the Supreme Court of Justice informed the applicant company that the decision of 20 December 2010 had been final and not subject to any form of appeal. The appeal was accordingly left without examination.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9.  The Government raised a preliminary objection. They argued that the applicant company had failed to exhaust available domestic remedies. In particular, it could have lodged a request for the reopening of the proceedings (revision of the final decision of 20 December 2010).

10.  The applicant company submitted that the revision of a final judgment was an extraordinary remedy. Moreover, any attempt to obtain such a revision would not have interrupted the running of the six‑month period for lodging its application with the Court.

11.  The Court notes that, with respect to final judgments delivered by national courts, it has repeatedly held that a request for reopening of proceedings is not an effective remedy for the purposes of complying with the admissibility criteria under Article 35 § 1 of the Convention (see Babinský v. Slovakia (dec.), no. 35833/97, 11 January 2000).

12.  Notwithstanding the above, the Court has held that extraordinary remedies should be resorted to in certain circumstances, notably where this is the only means by which the respondent State can put matters right through its own legal system (see Dinchev v. Bulgaria, no. 17220/09, § 28, 21 November 2017, which dealt expressly with the applicant’s exclusion from the proceedings affecting his rights). In such circumstances it was necessary to establish whether the remedy in question was sufficiently well established under domestic law and effective (idem, § 29).

13.  In the present case, it is noted that in December 2010, when the decision affecting the applicant company’s rights was adopted, and in January 2011 when it found out about it, domestic law (Article 449 of the Code of Civil Procedure, “CCP”) no longer provided an express ground for the reopening of proceedings (revision) on the basis of the fact that the final decision had affected the rights of persons not involved in the proceedings. That particular ground for the reopening had been excluded from Article 449 CCP by law no. 244‑XVI of 21 July 2006. It was reintroduced into that provision on 30 November 2012, when law no. 155 entered into force. Accordingly, at the relevant time, the applicant company did not have at its disposal a remedy which was available against a final court decision affecting its rights without involving it in the proceedings. The Government’s objection must therefore be rejected.

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

15.  The relevant general principles concerning the right of “access to a court” have been summarised in Zubac v. Croatia [GC] (no. 40160/12, §§ 76‑79, 5 April 2018). In particular, for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights. That does not apply only to proceedings that have already commenced, as the provision may also “be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see Cañete de Goñi v. Spain, no. 55782/00, § 34, ECHR 2002‑VIII with further references).

16.  In the present case, it is apparent that in a legal dispute between D. and the A. spouses the applicant company’s rights were directly affected when it was ordered to vacate the premises which it occupied on the basis of a rental agreement. Neither its rights or position, nor the validity of that rental contract had been the subject of those proceedings. Moreover, those proceedings ended with the final judgment of 26 October 2009, which did not mention the applicant company in any way. It was only in interpreting that judgment on 20 December 2010 that the Supreme Court of Justice ordered the applicant company to vacate the premises. It did so without involving the applicant company in the proceedings or inviting it to submit any arguments or evidence (compare also Business Şi Investiţii Pentru Toţi v. Moldova, no. 39391/04, § 33, 13 October 2009). The very fact that the Supreme Court of Justice ordered the applicant company to vacate the premises proves that that court was aware of the fact that the company’s rights would be affected by its decision.

17.  The Government argued that the applicant company had been aware of the on-going proceedings between D. on the one hand and Chris and the A. spouses on the other from before the adoption of the judgment of 26 October 2009. Notably, Chris designated it as the defendant in a lawsuit lodged with the commercial court on 22 June 2010. The applicant company denied having been informed in any manner of any of those proceedings.

18.  The Court considers it unnecessary to determine whether or not the applicant company knew about the proceedings. The relevant question is whether the authorities knew of the applicant company’s presence on the premises, in which case any decision removing it from there necessarily affected its rights and required its involvement in the proceedings. Since the Supreme Court of Justice ordered it to vacate the premises, clearly it was aware of the applicant company’s presence and did not involve it in the proceedings. The Court finds that by adopting a decision directly affecting the applicant company’s rights without involving it in the proceedings, the Supreme Court of Justice disregarded its right of access to a court.

19.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant company claimed 6,000 euros (EUR) in respect of non‑pecuniary damage and EUR 1,050 in respect of costs and expenses incurred before the Court.

21.  The Government argued that the sums claimed were excessive.

22.  The Court awards the applicant company EUR 3,600 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

23.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,050 for the proceedings before the Court, plus any tax that may be chargeable to the applicant company.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei 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 1,050 (one thousand and fifty euros), plus any tax that may be chargeable to the applicant company, 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;

Done in English, and notified in writing on 16 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President