Information Note on the Court’s case-law No. 92
December 2006
Oferta Plus SRL v. Moldova - 14385/04
Judgment 19.12.2006 [Section IV]
Article 34
Hinder the exercise of the right of petition
Criminal proceedings initiated against chief executive officer and his detention ordered with the aim to discourage his company from pursuing its application before the Court: violation
Refusal to allow the applicant company's counsel to confer with its chief executive officer in a detention facility without being separated by a glass partition: violation
Article 6
Civil proceedings
Article 6-1
Fair hearing
Non-enforcement of final judgment and abusive quashing thereof: violation
Facts: The applicant company initiated proceedings against the Ministry of Finance when it refused to pay on a treasury bond issued in its favour. In 1999 a court found in favour of the applicant company and confirmed its right to be paid MDL 20 million. Despite enforcement proceedings the applicant company only received MDL 5 million in 2004. In April that year the applicant company informed the Government Agent about its application to the Court. In June the Ministry of Finance initiated revision proceedings against the 1999 judgment. The Supreme Court eventually quashed it and the re-opened proceedings ended with a judgment in favour of the Government. Later in 2004 criminal proceedings were initiated against the applicant company's chief executive officer (“the CEO”) on charges of alleged embezzlement, but these were discontinued one year later.
In February 2006 the Court communicated the applicant company's case to the respondent Government. In April 2006 the criminal proceedings against the CEO were re-opened and he was formally indicted for alleged misappropriation of MDL 5 million and for alleged attempted misappropriation of a further MDL 15 million. He was arrested and placed in custody in August 2006. He appealed against his detention, claiming that the criminal proceedings against him were a means of pressuring the company to abandon its application before the Court. His appeal was dismissed.
In the meantime, the applicant company's counsel before the Court applied to the Centre for Fighting Economic Crimes and Corruption (“CFECC”) to visit the CEO in detention. He asked that the meeting between them take place without a glass partition separating them and submitted that both he and the CEO had reasons to believe that conversations through that partition in the CFECC meeting room were being intercepted. The request having been refused, the CEO declined to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because their conversation would have related to the whereabouts of the company's accounting documents which he had refused to disclose to the investigators.
Law: Article 6 – The non-enforcement together with the subsequent abusive quashing of the judgment of 1999 meant that the applicant company was deprived of most of the benefits of a judgment which had been enforceable for a period of almost four years. The proceedings failed to meet the requirement of a fair trial.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1 – The impossibility for the applicant company to obtain execution of the judgment and the subsequent abusive quashing of that judgment constituted an interference with the
company's right to the peaceful enjoyment of its possessions and no fair balance was struck between the applicant's interests and the other interests involved.
Conclusion: violation (unanimously).
Article 34 – The criminal charges against the applicant company's CEO appeared to be inconsistent with previous factual findings of civil courts. He had been charged for the first time after the Government had been informed about the application to the Court and for the second time after the applicant's case had been communicated to the Government. Based on the materials before the Court, there were sufficiently strong grounds to infer that those criminal proceedings had been aimed at discouraging the company from pursuing its case before the Court.
Conclusion: violation (unanimously).
Article 34 – The alleged lack of confidentiality of lawyer-client communications in the CFECC detention centre had been a matter of serious concern for the entire community of lawyers in Moldova for a long time. The applicant company's CEO and its counsel before the Court could reasonably have had grounds to fear that their conversation in the CFECC lawyer-client meeting room was not confidential. There was no aperture in the glass partition separating the CEO from the lawyer and therefore they had not been able to exchange documents in confidence. In sum, the impossibility for the CEO to discuss with the company's lawyer issues concerning the company's application before the Court, without being separated by a glass partition, affected the applicant's right to petition.
Conclusion: violation (unanimously).
Article 41 – Reserved. According to the applicant company, communication between its CEO and counsel before the Court was hampered to such an extent that the company was unable so far to communicate its claims for pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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