THIRD SECTION
DECISION
Application no. 35401/11
Andrei CHIRIAC
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 21 April 2015 as a Committee composed of:
Kristina Pardalos, President,
Valeriu Griţco,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 1 June 2011,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrei Chiriac, is a Moldovan national, who was born in 1966 and lives in Strasbourg.
The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a lawyer. On an unspecified date in 2004 he concluded a legal assistance contract with a Latvian company named Aroma Floris. On the basis of that contract the applicant undertook to represent Aroma Floris before the Court in its proceedings against the Republic of Moldova concerning the failure to enforce a final judgment in its favour. According to the terms of the contract, Aroma Floris was to pay the applicant 46,718 United States dollars (USD) and 28% of the amount of money awarded in the proceedings.
After the communication of its case to the Government, Aroma Floris changed its representative in the proceedings before the Court and, subsequently, its application was struck out in 2008 as a result of a friendly settlement agreement reached with the Government.
On an unspecified date in 2010 the applicant brought proceedings before the Botanica District Court against its former client, Aroma Floris, and claimed USD 46,718 and 114,219 Euros (EUR). Aroma Floris initially employed a lawyer who objected to the proceedings arguing that according to a 1993 treaty between the Republic of Moldova and Latvia concerning legal assistance, the Latvian courts had exclusive jurisdiction in the case. He also submitted that according to that treaty, the defendant’s summoning was to take place through a special procedure involving the Ministries of Justice of Moldova and Latvia. After making that objection, Aroma Floris revoked the power of attorney from its lawyer and did not participate in the proceedings.
On 18 October 2010 the Botanica District Court examined the case in the absence of the representative of Aroma Floris and ruled in favour of the applicant. It ordered Aroma Floris to pay the applicant USD 65,700 and EUR 160,628.
On an unspecified date in November 2010 a Moldovan bailiff sent an enforcement writ to Aroma Floris, in Latvia, and informed it that an enforcement procedure was pending against it in the Republic of Moldova on the basis of a court order issued by the Botanica District Court on 18 October 2010. It does not appear from the materials of the case that a copy of the decision of 18 October 2010 was received by Aroma Floris at that date or on any subsequent date before 11 February 2011 (see below).
On 27 January 2011 Aroma Floris wrote a letter to the Ministry of Justice of the Republic of Moldova in which it complained about the manner in which the Botanica District Court conducted the proceedings. In particular, it stated that according to the Moldovan-Latvian treaty of 1993, Latvian courts had jurisdiction in the case. Moreover the summoning of Latvian nationals and the handing of court decisions by Moldovan authorities was to be carried out in accordance with a special procedure through the Ministry of Justice. According to Aroma Floris, none of the above took place.
On 11 February 2011 a representative of Aroma Floris went to the Botanica District Court where he was officially served with a copy of the judgment of 18 October 2010.
On 28 February 2011 Aroma Floris lodged an appeal with the Chisinau Court of Appeal against the judgment of the Botanica District Court of 18 October 2010 in which it complained, inter alia, about the failure of the first instance court to apply the provisions of the Latvian-Moldovan treaty of 1993.
The applicant did not make any objections in respect of the appeal lodged by Aroma Floris.
On 1 June 2011 the Chisinau Court of Appeal upheld the appeal lodged by Aroma Floris, quashed the judgment of 18 October 2010 and ordered a fresh re-examination of the case. On the same date the applicant lodged his application with the Court.
The applicant did not participate in the re-opened proceedings and for that reason the case was struck out.
B. Relevant domestic law
According to Article 362 of the Code of Civil Procedure, as in force at the material time, a judgment issued by a first instance court could be challenged with an appeal within twenty days calculated from the date of serving of the reasoned judgment or within twenty days from the date of serving of enforcement writ together with the reasoned judgment.
COMPLAINTS
The applicant complained that the upholding by the Chisinau Court of Appeal on 1 June 2011 of the late appeal lodged by Aroma Floris against the judgment of 18 October 2010 amounted to a breach of the principle of legal certainty contrary to Article 6 § 1 and infringed his rights guaranteed by Article 1 of Protocol No. 1 to the Convention.
THE LAW
The applicant complained under Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The applicant also complained under Article 1 of Protocol No. 1 to the Convention which reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government submitted that Aroma Floris’s appeal was lodged within twenty days from the official serving of the judgment of 18 October 2010 on it. Therefore, there was no breach of the principle of res judicata and of the applicant’s rights guaranteed by Article 1 of Protocol No. 1. Moreover, the applicant failed to raise this issue before the Chisinau Court of Appeal.
The Court notes that according to Article 362 of the Code of Civil Procedure, as in force at the material time, the judgment of the Botanica District Court of 18 October 2010 could be challenged with an appeal within twenty days from the date on which the reasoned judgment was officially served on the defendant. According to the materials of the case-file, the judgment was officially served on Aroma Floris on 11 February 2011. There is no evidence that it had been officially served before that date.
It is true that Aroma Floris learned about the existence of the judgment in November 2010, when informed by a bailiff. However, the applicant did not indicate the existence of any legal provisions and/or practice of the domestic courts to support the idea that such a way of informing the parties about a judgment would count as an official serving of a reasoned judgment for the purposes of Article 362 of the Code of Civil Procedure. In such circumstances the Court cannot accept the applicant’s contention that the defendant’s appeal was late.
The application is therefore manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 May 2015.
Marialena TsirliKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy