SECOND SECTION
DECISION
Application no. 29333/14
Î.M. RESAN S.R.L.
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 1 December 2020 as a Committee composed of:
Branko Lubarda, President,
Valeriu Griţco,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 29 March 2014,
Having regard to the declaration submitted by the respondent Government on 29 May 2020 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Î.M. Resan S.R.L., is a company incorporated in Moldova. It was represented before the Court by Ms G. Gutium, lawyer practising in Chişinău.
The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.
The applicant company complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that, on 4 December 2013, the Supreme Court of Justice had reversed the judgments of two lower courts in its favour in a set of proceedings between it and a company M. without even informing it about the existence of an appeal on points of law lodged by company M., let alone summoning it to the hearing. The two lower courts which had examined the case before the Supreme Court had upheld its action against company M. and had made a finding to the effect that the latter had wrongfully terminated a contract between the two of them.
The judgments quashed by the Supreme Court only made the above finding without ruling on any damages. The applicant’s intention had been to initiate separate proceedings in order to claim damages from company M. after the termination of the above proceedings. However, in view of the decision of the Supreme Court of 4 December 2013, it could no longer pursue its initial plan.
After the communication of the case to the Government, the Government Agent introduced a revision request with the Supreme Court of Justice. On 14 August 2019 the latter upheld the request and quashed its judgment of 4 December 2013. In so doing, the Supreme Court of Justice found a breach of the applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention on the ground that the applicant had not been informed about the appeal on points of law proceedings and had not been given a chance to defend itself in those proceedings. It also ordered a re-examination of the appeal on points law lodged by company M. against the judgment of the lower courts.
On 13 November 2019 the Supreme Court of Justice re-examined the appeal on points of law and dismissed it as ill-founded, thus upholding the lower courts’ judgments favourable to the applicant.
After the above judgment of the Supreme Court, the applicant company did not introduce any new actions against Company M. to claim damages.
THE LAWThe complaint under Article 6 §1 of the Convention
The applicant complained under Article 6 § 1 of the Convention that the proceedings had been unfair, because it had not been aware of the proceedings before the Supreme Court and could not organise its defence since the Supreme Court had upheld an appeal on points of law lodged outside the time-limit provided for by law.
After the failure of attempts to reach a friendly settlement, by a letter of 29 May 2020, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government acknowledge that the applicant company suffered a breach of Article 6 § 1 of the Convention, as communicated by the Court in its letter of 13 March 2019.
In this sense, having regard to the criteria emerging from the Court’s case-law (see, inter alia, Haran v. Turkey (striking out), no. 25754/94, 26 March 2002), the Government consider that the above acknowledgement would partly serve as just satisfaction for any and all alleged pecuniary and non‐pecuniary damage, as well as costs and expenses.
The Government note that in the present case the applicant company’s situation has been redressed during the re-opened revision proceedings instituted by the Government Agent after the communication of the case. Thus, by its final decision of 14 August 2019 (see enclosed hereto), the Supreme Court of Justice, inter alia, expressly acknowledged the violation of the applicant company’s rights guaranteed by Article 6 § 1 of the Convention, admitted the Government Agent’s revision request, quashed its own decision of 4 December 2013 (which had served as a basis for the violation of the applicant company’s rights un the Convention), and sent the case for a fresh examination. By its subsequent final decision of 13 November 2019 (see enclosed hereto), the Supreme Court of Justice upheld the appellate court’s decision of 28 May 2013 in the applicant company’s favour.
The Government emphasize that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his/her situation. The question whether the applicant has received reparation for the damage caused comparable to just satisfaction as provided for under Article 41 of the Convention is an important issue. According to the Court’s well-established case-law, where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the concerned parties can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. I), no. 36813/97, 29 March 2006; Ciorap v. Moldova (2), no. 7481/06, 20 October 2010).
Also, having made their own assessment of the circumstances of the present cases within the terms of the case-law cited above, the Government propose 1,500 (one thousand five hundred) euros as just satisfaction to cover any and all pecuniary and non-pecuniary damage incurred by the applicant company, as well as costs and expenses.
The Government declare that the above amount will be converted into Moldovan lei at the rate applicable on the date of the payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sums within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the cases and of any other claims that may appear from the circumstances of the present cases.
Therefore, having considered the above principles, the Government declare that the present acknowledgment, as well as the amount of compensation proposed by the Government for any and all pecuniary and non-pecuniary damage, as well as costs and expenses, serve as just satisfaction. Consequently, the applicant company cannot further claim to be a victim of the alleged violation due to losing its victim status within the meaning of Article 34 of the Convention.
In conclusion, the Government invite the Court to strike the present application out of its list, according to the provisions of Article 37 § 1 (c) of the Convention.”
By a letter of 13 July 2020, the applicant company indicated that it was not satisfied with the terms of the unilateral declaration. In particular, the applicant submitted that the Government had not acknowledged the breach of Article 1 of Protocol No. 1 and the judgments of the Supreme Court of Justice of 14 August and 13 November 2019 were of no use to it because it could no longer lodge an action against Company M. to claim compensation for breach of contract due to the statute of limitations. The applicant also claimed pecuniary damage in the amount of 632,588 Moldovan lei (some EUR 31,600) and non-pecuniary damage in the amount of EUR 10,000.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
In so far as the applicant’s contention that it can no longer bring an action against company M. for breach of contract due to the statute of limitation, the Court notes that the applicant company did not indicate from which moment it considered that the statutory time-limit had started running for its action against company M. Furthermore, the Court notes that under Article 395 of the Civil Code the three years’ limitation period starts running from the date on which the applicant learned or must have learned about a breach of his/her/its rights. Since in the present case the breach of contract was a matter of dispute between the applicant company and company M. and given that the domestic courts confirmed that company M. committed a breach of contract only on 13 November 2019 when the Supreme Court of Justice finally decided on the disputed matter, it would appear that the limitation period started running for the applicant from that day on. Indeed, the applicant could not possibly have a valid case against the defendant company to claim compensation for breach of contract before that date. Thus, the Court considers this contention not to be meritorious and dismisses it.
In the light of the above and having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint.The complaint under Article 1 of Protocol No. 1 to the Convention
Relying on Article 1 of Protocol No. 1 to the Convention the applicant also complained that its right to respect for its property has also been breached.
Having regard to all the evidence in its possession and to the finding above that after the Supreme Court of Justice’s final judgment of 13 November 2019 it became open to the applicant to claim compensation from company M. but it did not do so, this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 14 January 2021.
Hasan BakırcıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy