THIRD SECTION
DECISION
Application no. 12875/04
Gheorghe GRUSCA
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 16 December 2014 as a Committee composed of:
Dragoljub Popović, President,
Kristina Pardalos,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 26 November 2003,
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
1. The applicant, Mr Gheorghe Grușcă, is a Moldovan national, who was born in 1942 and lives in Cimișeni. He was represented before the Court by Mr I. Manole, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr. V. Grosu.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 13 February 1997 the applicant set up a private company providing bus passenger services. On 12 March 1997 he obtained a business licence valid until 17 March 1998.
4. On 27 September 1997 a control by transport authorities identified some irregularities in the applicant’s activity. On 30 September 1997 the Transport Inspectorate of the Ministry of Transport and Road Administration (“the Inspectorate”) drew up a report concerning the alleged irregularities. It subsequently withdrew the applicant’s licence card for an undetermined period (the “license card” („fișa de licență”) was an annex to the general business licence, the possession of which was compulsory for carrier services).
5. On 22 October 1997 the authorities returned the licence card to the applicant.
1) The proceedings concerning the lawfulness of the licence card withdrawal
6. On 14 April 1998 the applicant instituted court proceedings against the Inspectorate, seeking the annulment of the report of 30 September 1997 and of the decision to withdraw his licence card.
7. On 8 October 1998 the Economic Court of the Republic of Moldova declared null and void the report of 30 September 1997, ordered the Inspectorate to return the licence card to the applicant and to extend the validity of the applicant’s general business licence by seven months and seventeen days from the date of the delivery of the judgment.
8. On 9 February 1999 the Inspectorate appealed. On 13 April 1999 the Appeals Chamber of the Economic Court upheld the part of the judgment declaring the report of 30 September 1997 null and void but quashed the part of the judgment which ordered the return of the license card and the extension of the business licence validity. It found that the Inspectorate had not withdrawn the general business licence and that therefore there were no reasons to extend its validity.
2) The proceedings concerning the award of pecuniary damages
9. On 15 November 1998 the applicant instituted court proceedings against the Inspectorate, claiming compensation for pecuniary damage on account of the period of involuntary inactivity during which he had been unlawfully deprived of his licence card.
10. On 7 December 1998 the Chișinău District Economic Court awarded the applicant 97,200 Moldovan lei (MDL) (equivalent to 7,632 euros (EUR) at the time). This decision became final on 22 December 1998 and an enforcement warrant was issued on the same date.
11. On 28 December 1998 the Inspectorate asked for the annulment of that judgment (“contestatie in anulare”), arguing that it had not been properly summoned to the hearing of 7 December 1998. On 29 December 1998 the Deputy President of the Chișinău District Economic Court stayed the enforcement of the writ issued on 22 December 1998. On 3 February 1999 the Chișinău District Economic Court rejected the Inspectorate’s request for annulment, finding that the Inspectorate had been properly summoned to the hearing of 7 December 1998. The Inspectorate appealed this decision. The stay of enforcement was lifted and the sum of MDL 97,200 was transferred to the applicant’s bank account on 10 March 1999.
12. Meanwhile, on 16 January 1999 the Inspectorate lodged an ordinary appeal against the judgment of 7 December 1998. On 2 March 1999 the Chișinău District Economic Court left the appeal unexamined because the Inspectorate had failed to pay court fees.
13. On 9 March 1999 the Inspectorate lodged another appeal without paying court fees. It also asked for the attachment of the applicant’s bank account. On 11 March 1999 the Appeals Chamber of the Economic Court ordered the attachment of the applicant’s bank account. The applicant appealed the attachment order.
14. On 13 April 1999 the Cassation Chamber upheld the Inspectorate’s appeal against the decision of 3 February 1999 and quashed that decision, holding that the Inspectorate had not been properly summoned and that it could not attend the hearing on 7 December 1998. It also concluded that in the light of these circumstances, the fifteen-day time-limit to appeal the judgment of 7 December 1998 started running not on the date of its delivery but on the date when it was served onto the Inspectorate, which was 28 December 1998. Accordingly, the court decided that the Inspectorate’s request for annulment of 28 December 1998 was to be dealt with like an ordinary appeal and remitted it to the Appeals Chamber for examination. In the same proceedings, the court examined the applicant’s appeal against the attachment order and partially upheld it by limiting the scope of the measure to the sum of MDL 97,200.
15. On 24 May 1999 the Appeals Chamber of the Economic Court accepted the Inspectorate’s ordinary appeal, quashed the judgment of 7 December 1998 and remitted the case for a fresh examination.
16. On 14 July 1999, rehearing the case, the Chișinău District Economic Court ruled in the applicant’s favour but reduced the award of damages to MDL 42,730. In an additional judgment of 15 July 1999, the court ordered the applicant to return to the Inspectorate’s bank account MDL 54,470, which represented the difference between the previous (MDL 92,700) and the new award.
17. Both parties appealed the judgment. The Inspectorate’s appeal was left unexamined for failure to pay court fees. The applicant’s appeal was upheld and on 17 March 2000 another fresh examination was ordered. In the meantime, the award of 14 July 1999 was fully enforced.
18. On 14 July 2000, rehearing the case, the Chișinău District Economic Court ruled in the applicant’s favour but further reduced the award of damages to MDL 38,064. An enforcement warrant was issued and enforced. Thus, the applicant received a total amount of MDL 80,764 on the basis of the awards of 14 July 1999 and of 14 July 2000. On 29 November 2000 the Appeals Chamber upheld the judgment of 14 July 2000.
19. The Inspectorate appealed. On 28 February 2001 the Supreme Court of Justice quashed the judgments of 14 July 2000 and of 29 November 2000 and remitted the case for another fresh examination.
20. On 11 December 2002, rehearing the case, the Chișinău District Economic Court ruled in the applicant’s favour but further reduced the awards of damages to MDL 30,241. It also ordered the applicant to reimburse the sum of MDL 80,764 which represented the amount enforced under the previous court awards. The applicant appealed.
21. On 29 May 2003 the Civil Chamber of the Court of Appeals left his appeal unexamined for failure to pay court fees (MDL 4,680 equivalent to EUR 282). The court dismissed the applicant’s argument of insufficient means by referring to the sum of MDL 80,764 which he had obtained under previously enforced awards and had not yet returned.
22. At the Inspectorate’s request, on 14 July 2003 the Chișinău District Economic Court modified the manner of enforcement of the judgment of 11 December 2002, deducting the sum owed to the applicant from the sum owed by the applicant to the Inspectorate. Accordingly, it ordered the applicant to transfer MDL 50,523 (equivalent to EUR 3,164) to the Inspectorate’s account. An enforcement warrant was issued on the same date.
23. On 17 July 2003 the applicant lodged an appeal in cassation with the Supreme Court of Justice against the decision of 29 May 2003. He also asked for a waiver of court fees, arguing that he had insufficient means and that he was unemployed.
24. On 28 July 2003 the Supreme Court of Justice informed the applicant that his appeal in cassation was left unexamined for failure to pay court fees before the Court of Appeals. He was, therefore, not entitled to lodge an appeal in cassation once the merits of his case had not been examined by the appellate court.
25. By a letter of 4 November 2011 the applicant informed the Court that he intended to make use of the new remedy against the problem of unreasonable length of proceedings, in accordance with Law no. 87. He did not dispute the effectiveness of the new remedy.
B. Relevant domestic law
26. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012.
COMPLAINTS
27. The applicant complained under Article 6 of the Convention that the length of proceedings had been excessive; that his right of access to court had been breached as a result of the domestic courts’ refusal to examine his appeal and that the proceedings had been unfair.
28. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that the decision of 30 September 1997 to withdraw his license card had infringed his right to peaceful enjoyment of his possessions.
THE LAW
A. Complaint under Article 6 § 1 of the Convention about the excessive length of proceedings
29. The applicant complained that the length of proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“ 1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time.”
30. The Court recalls that in Balan v. Moldova ((dec.), no. 44746/08, 24 January 2012) and Manascurta v. Moldova ((dec.), no. 31856/07, 14 February 2012) it has held that the new remedy introduced by Law no. 87 was designed to address the issue of delayed enforcement of judgments and excessive length of proceedings and that it was not ineffective. It was also held that in spite of the fact that the new remedy only became available after the introduction of those applications, the applicants were obliged to use it and that using it did not constitute and excessive burden for those applicants and for other applicants in a similar position.
31. The Court notes that in the present case the applicant agreed to use the new remedy under Law no. 87. He did not dispute the effectiveness of the new remedy. It notes, however, that the applicant had not informed the Court about having instituted and completed such proceedings.
32. It follows that the applicant’s complaint about the excessive length of proceedings must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Complaint under Article 6 § 1 of the Convention about the refusal of access to court
33. The applicant complained that his right of access to a court had been limited contrary to Article 6 § 1 of the Convention. He contended that the requirement of paying MDL 4,680 (equivalent to EUR 282) for lodging his appeal had amounted to a total bar on his access to a court.
34. The Government submitted that the applicant had in fact had sufficient funds to pay court fees, as was clear from the judgments of 14 July 1999 and of 14 July 2000 enforced in his favour. Thus, the applicant had been paid a total amount of MDL 80,764, which, in their view, was largely sufficient to allow the applicant to pay MDL 4,680 in court fees.
35. The applicant disagreed with the Government’s arguments. He argued that his business had closed in 1997. He submitted that the excessively long proceedings had negatively affected his health and that he had to undergo in-patient medical treatment which required considerable resources. Finally, he submitted that following the annulment of the judgment in his favour he owed the State approximately EUR 3,414.
36. The Court notes that the applicant did not submit before domestic courts or before this Court any evidence to substantiate his claim that he had spent during the relevant period the money received under previous judgments, including the amount which he did not have to reimburse (MDL 30,241, equivalent to EUR 2,138), and that those expenses were unavoidable. This reveals a conscious choice on his part not to spend the money to pay the court fees but to channel it for other purposes, while refusing to give any details as to the destination of that money (see Romany Gaz Group v. Moldova (dec.), no. 11662/05, 8 June 2010).
37. The Court notes that the domestic courts gave sufficient reasons for their decisions to demand the full payment of the court fees. Therefore, it considers that the applicant’s right of access to a court has not been limited to such an extent as to render it illusory, given that he failed to substantiate his claims about having insufficient means to pay the fees.
38. Accordingly, the applicant’s complaint about the denial of access to a tribunal must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 6 § 1 of the Convention about the unfairness of proceedings
39. The applicant complained that the domestic courts did not give any reasons for accepting to examine the Inspectorate’s appeal of 9 March 1999 allegedly lodged out of time and without paying court fees.
40. As to the domestic courts’ decision to exonerate the Inspectorate, the Government submitted that State authorities were not exempted from payment of court fees before 12 June 2003 when the new Civil Procedure Code entered in force. Additionally, the Government submitted documents confirming that the Inspectorate had actually paid the required court fees. The Court finds no reason to challenge these assertions put forward by the Government.
41. In so far as the applicant contended that the Inspectorate’s appeal of 9 March 1999 had been upheld despite its having been lodged out of time, it appears that the domestic courts clearly explained in their reasoned decisions that the fifteen-day time-limit for lodging an appeal against that judgment had begun running not from the date of its delivery, but from the date on which it had been served onto the Inspectorate (see paragraph 14 above).
42. Thus, the Court dismisses these complaints as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaint under Article 1 of Protocol No. 1 to the Convention
43. The applicant complained that the Inspectorate’s decision of 30 September 1997 to withdraw his license card infringed his right to peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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.”
44. The Government submitted that the withdrawal of the applicant’s license card was declared null and void and that the applicant obtained in court compensation of pecuniary damage. The Government argued that it was open to the applicant to apply for a new license once the old one had expired. The Government contended that the application should be rejected for abuse of right of petition as the applicant had omitted to inform the Court that the domestic courts had acknowledged the unlawfulness of the withdrawal of the applicant’s license card and that his claim for compensation had been granted. They referred, in particular, to the judgment of 8 October 1998 of the Chișinău District Economic Court
45. The applicant argued that the Government’s submissions were inaccurate and that the relevant information was contained in his original application. The applicant argued that the obtained compensation had been insufficient because the withdrawal of the license card had finally resulted in the closure of his business.
46. The Court notes that the applicant mentioned those facts and that copies of relevant judgments were contained in the applicant’s initial submissions to the Court. Accordingly, the Government’s preliminary objection must be dismissed.
47. The Courts notes that on 13 April 1999 the courts have finally concluded that the withdrawal of the applicant’s license card had been unlawful. Based on this finding, on 11 December 2002 the applicant obtained an award of MDL 30,241 (equivalent to EUR 2,138) as compensation for the pecuniary damage resulting from the involuntary business inactivity during 122 days (from 27 September 1997 to 17 March 2008 when his business license expired).
48. In examining the present case, the Court did not obtain from the applicant any information concerning the post-tax profit of his business activity and sees no reason to consider the calculations provided by domestic courts as unreliable or incorrect. In respect of the applicant’s business inactivity after 17 March 1998, the Court agrees with the Government’s submission that the applicant would have needed a new licence, for which the applicant did not apply.
49. Having regard to the above considerations, the Court dismisses this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Marialena TsirliDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy