SECOND SECTION
DECISION
Application no. 52533/09
Ludmila INDRICEAN
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 7 September 2021 as a Committee composed of:
Carlo Ranzoni, President,
Valeriu Griţco,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 September 2009,
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, Ms Ludmila Indricean, is a Moldovan national who was born in 1954 and lives in Chișinău. She was represented before the Court by Mr A. Briceac, a lawyer practising in Chișinău.
The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr L. Apostol.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 September 2003 the applicant took out a bank loan but was unable to repay it. Another person (A.) agreed to repay the loan to the bank and to become the applicant’s creditor. According to the applicant, A. offered to sign a contract whereby she would sell her apartment to him as a guarantee for repayment of the debt. A. promised not to register the contract with the local authorities and to annul it after repayment of the debt. However, after signing the contract A. immediately sold the apartment to another person (L.).
L. initiated court proceedings seeking to obtain possession of the apartment which he had bought from A. The applicant lodged a counter‑claim for the annulment of the contract for the sale of the apartment. She issued a power of attorney to D. to represent her in all the courts of Moldova and to carry out all necessary acts in respect of the case.
On 28 October 2008 the Rîşcani District Court found in the applicant’s favour and annulled the contract for the sale of the apartment between the applicant and A. and between A. and L. That judgment was upheld by the Chişinău Court of Appeal on 15 January 2009. The applicant was not present in court on either occasion, but was represented by D.
A. and L. appealed. According to the applicant, she was never informed of their appeal and thus could not respond to it in writing, as she was allowed to do by law. Moreover, she never received the summons for the hearing before the Supreme Court of Justice.
According to the Government, D. participated in the hearings before the Supreme Court of Justice on 6 and 20 May 2009. On both occasions the hearings were postponed, and each time the parties’ representatives signed the summons for the next hearing. At the hearing on 20 May 2009 D. signed, having been informed of the date of the next hearing, on 3 June 2009.
On 3 June 2009 the Supreme Court of Justice quashed the lower courts’ judgments and adopted a new one, accepting the claims of A. and L. and rejecting the applicant’s claims. Neither the applicant nor her representative was present. The lawyers of A. and L. were present and addressed the court. In respect of the applicant’s absence, the court noted that “she had been summoned in accordance with the law”.
COMPLAINTS
The applicant complained that in overturning the lower courts’ judgments in her absence the Supreme Court of Justice had breached her rights guaranteed under Article 6 § 1 of the Convention.
She also complained that as a result of the judgment of the Supreme Court of Justice she had lost her apartment, in violation of Article 1 of Protocol No. 1 to the Convention.
THE LAWComplaint under Article 6 § 1 of the Convention
The applicant submitted that she had been unrepresented before the Supreme Court of Justice and had not been informed of the appeal lodged by the opposing party so as to be able to respond to it. She had terminated her representation by D. on 15 January 2009, when the Court of Appeal adopted a judgment in her favour, and did not have any contact with him thereafter. Had she known that an appeal was pending before the Supreme Court of Justice she would have hired a licensed lawyer, since D. had not had the necessary qualifications. She was thus at a disadvantage with respect to the other parties to the proceedings, who had been represented by licensed lawyers. Moreover, she had not meant to allow D. to represent her before the Supreme Court of Justice, but only before the first and second‑instance courts.
The Government submitted that the applicant had been represented throughout the proceedings by D. Since she had withheld that information from the Court, the Government asked for the application to be rejected as abusive under Article 35 § 3 of the Convention. In any event, the applicant gave full authority to D. to represent her in all the courts, which implied also the Supreme Court of Justice. Accordingly, her interests were properly represented before that court.
The Court considers that, in view of the considerations below, it does not have to decide on the alleged abusive character of the applicant’s failure to inform it of her representation by D. It notes that the applicant gave D. the power to represent her in all Moldovan courts. It agrees with the Government’s argument that there is no reason to exclude the Supreme Court of Justice from the list of courts where D. had the power to represent her.
It is also to be noted that D. represented the applicant throughout the proceedings and that she never expressed any doubts as to his ability to present her case, despite his not being a licensed lawyer. It was her choice to rely on his help rather than to hire a lawyer. Moreover, her statement that she would have hired a licensed lawyer had she known about the other parties’ appeal before the Supreme Court of Justice implies that she had the means to hire a lawyer. Therefore, the Court does not accept the argument that her representation by D. before the Supreme Court of Justice put her at a disadvantage in comparison to the other parties, since she had made that choice.
Since D. signed the summons for the hearing of 3 June 2009 and was thus informed of the date of the hearing, the applicant must be considered to have been informed of that hearing.
As for the applicant’s argument that she had terminated her representation by D. and lost contact with him after the judgment of the Court of Appeal, the Court notes that no evidence has been submitted in that respect. Moreover, it considers that it was her own choice not to be proactive in defending her interests (see, in respect of the duty of diligence by the parties to the domestic proceedings, Aleksandr Shevchenko v. Ukraine, no. 8371/02, § 27, 26 April 2007; Ponomaryov v. Ukraine, no. 3236/03, § 41, 3 April 2008, and O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, § 149, 7 June 2018). If she was no longer represented by D. or could not contact him, she could easily have replaced him. Given that she allegedly terminated her representation by D. on the day when the judgment of the Court of Appeal was adopted, she was aware of that judgment on the day it was pronounced. During the relevant period, the time-limit for an appeal on points of law was 20 days and the Supreme Court of Justice adopted its judgment some five months after the judgment of the Court of Appeal. The applicant had thus had enough time to check with the Court of Appeal whether any appeal in cassation had been lodged or could have authorised someone else to do so in her name.
Since the applicant did not notify any of the courts of a change in her representation, and in view of the fact that D. had represented her at two initial hearings before the Supreme Court of Justice, that court had no reason to verify on its own motion whether she continued to be represented by D.
Accordingly, the Court finds that the applicant’s representative – and therefore the applicant herself – was properly summoned for the hearing of 3 June 2009. The absence from that hearing of the applicant and her representative did not prevent the court from examining the case.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 § 3 (a) and 4 of the Convention.complaint under Article 1 of Protocol No. 1 to the Convention
As to the complaint under Article 1 of Protocol No. 1 to the Convention, having regard to all the material in its possession and to its finding in respect of the complaint under Article 6 § 1 of the Convention, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 § 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 September 2021.
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Hasan Bakırcı Carlo Ranzoni
Deputy Registrar President
Full & Egal Universal Law Academy