FOURTH SECTION
DECISION
Application no. 41463/04
by Gheorghe LUPASCU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 20 May 2008 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 29 March 2004,
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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Gheorghe Lupascu, is a Moldovan national who was born in 1948 and lives in Chisinau. He was represented before the Court by Mr V Iordachi, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 the applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), according to which he paid an insurance premium in exchange for an annuity. The applicant started receiving his annuity of 100 Moldovan lei (approximately 21 United States dollars as of 1 February 1997) on 1 July 1997. In November 1999 ASITO stopped paying the pension, invoking a change in the interest rate of the National Bank of Moldova and calling for the cancellation of the contract.
On an unspecified date in 2001, the applicant brought a civil action against ASITO, seeking the payment of the pension to date and requiring the company to abide by the contract.
On 21 May 2001, the Râşcani District Court found in favour of the applicant and ordered ASITO to pay the pension due and to resume the execution of the contract.
ASITO appealed against this judgment, asking inter alia for the cancellation of the contract concluded with the applicant in 1994 on the ground that the economic situation of the country had become worse and that the interest rate of the National Bank of Moldova had changed.
On 20 February 2002, the Chişinău Regional Court dismissed the appeal finding that the contract of 1994 was legal and valid. ASITO did not appeal and the judgment became final and enforceable.
On 14 December 2001 the Prosecutor General, in the context of different but related proceedings, lodged an “appeal in the interest of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding the contracts and of setting a uniform practice for all courts.
On 11 March 2002, the Plenary Supreme Court of Justice delivered a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. In particular, it found that the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova could be relied upon by ASITO in order to terminate unilaterally the annuity contracts. It also found that its judgment was binding on all courts, although it could not affect already existing judgments nor be used against parties to proceedings which had already been decided.
On an unspecified date, ASITO brought an action against the applicant seeking the cancellation of the contract concluded in 1994 on the ground that the economic situation of the country had become worse and that the interest rate of the National Bank of Moldova had changed.
By a final judgment of 30 June 2004, the Supreme Court of Justice ruled in favour of ASITO and ordered the termination of the contract concluded in 1994. It relied on the same arguments set out by the Plenary Supreme Court in its judgment of 11 March 2002.
On 25 October 2004, the Plenary Supreme Court of Justice upheld a revision request lodged against its judgment of 11 March 2002 by a group of ASITO pensioners. The Supreme Court quashed its previous judgment while finding, inter alia, that ASITO could not rely on the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova for avoiding its annuity contracts.
Following the communication of the case by the Court, the Government Agent asked the Prosecutor General to lodge a revision request with the Supreme Court of Justice to quash its judgment of 3 December 2003. On 12 December 2007 the Prosecutor General complied with the Government Agent’s request. He lodged a revision request relying on Article 449 § 1 (j) of the Code of Civil Procedure and argued that the termination of the 1994 contract generated a similar infringement of the applicant’s rights under the Convention as that in the case of Macovei and Others v. Moldova (nos. 19253/03, 17667/03, 31960/03, 19263/03, 17695/03 and 31761/03, 25 April 2006).
By a judgment of 19 December 2007 the Supreme Court of Justice upheld the Prosecutor General’s request for revision, quashed its judgment of 3 December 2003 and ordered that the case be re-tried before the Supreme Court.
On 20 December 2007 the Supreme Court of Justice issued a new judgment in the proceedings initiated by ASITO in 2002 and dismissed the action. Relying on Macovei and Others (cited above) the Supreme Court found that there had been a breach of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of calling into question the finality of the judgment of the Chişinău Regional Court of 20 February 2002. The Supreme Court also awarded him 900 euros (EUR) in compensation for pecuniary damage, representing his pension arrears, EUR 2,000 for non-pecuniary damage and EUR 800 for costs and expenses. It was also mentioned in the judgment that the 1994 contract remained valid and that the parties should abide by its provisions.
COMPLAINTS
The applicant complained, in substance, of a breach of the principle of legal certainty provided for in Article 6 § 1 of the Convention. He argued that the validity of his pension contract had been confirmed by a final judgment in his favour; however, it had been called into question later, after the judgment of the Plenary Supreme Court of 11 March 2002, when the courts upheld ASITO’s action against him and ordered the cancellation of the contract.
He also complained about the unfairness of the proceedings because of an alleged secret arrangement between ASITO and the Government. He claimed that ASITO had an agreement with the Government according to which it would withdraw its application (no. 40663/98 declared admissible at the time) from the Court in exchange for the Government’s assistance with their problem with the pensioners.
THE LAW
Article 37 of the Convention, as far as relevant, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved...”
Rule 43 § 1 of the Rules of Court, as far as relevant, reads as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases in accordance with Article 37 of the Convention.”
On 25 December 2007 the Government informed the Court about the outcome of the proceedings, which ended with the judgment of the Supreme Court of Justice of 20 December 2007. The Government considered that the applicant had been awarded adequate redress and requested the Court to strike out the application in accordance with Article 37 of the Convention.
On 19 March 2008 the applicant also informed the Court about the outcome of the proceedings, which ended with the judgment of the Supreme Court of Justice of 20 December 2007. Since the Supreme Court had awarded him adequate redress for the breaches of the Convention, he requested the Court to strike the application out of the list of cases.
The Court notes that the applicant has been awarded adequate redress by the domestic courts and that he does not intend to pursue his application. In these circumstances, the Court considers that it is no longer justified to continue the examination of the application under Article 37 § 1 (a) and (b) of the Convention. It is satisfied, having regard to the circumstances of the case, that respect for human rights does not require the continued examination of the application (Article 37 § 1 in fine). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the Court’s list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy