FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11662/05
by ROMANY GAZ GROUP
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 8 June 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 1 March 2005,
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, Romany Gaz Group, is a company registered in Moldova. It was represented before the Court by Mr F. Nagacevschi of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. 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. On 25 October 2000 the applicant company concluded a contract with Comgaz-Plus (“C-P”), a State-owned company. In accordance with the contract, the applicant company undertook to produce and install several natural gas heaters and thermal energy distribution systems for the Ungheni municipality. Having fulfilled its part of the contract, the applicant company asked C-P to pay the equivalent of 160,000 United States dollars (USD) in accordance with the contract. C-P failed to pay.
3. By further agreements the parties agreed that the applicant company would produce and install several additional natural gas heating systems. C‑P again failed to pay, but on 1 October 2003 it concluded a new agreement with the applicant company, under which it undertook to pay the latter the outstanding amount (USD 158,862) within twenty-four months. The parties also agreed that if the amount remained unpaid for three consecutive months, the applicant company would have the right to claim the entire debt plus the damages accrued under the previous agreements, that is, USD 409,671.
4. Since C-P again failed to pay, on 27 May 2004 the applicant company initiated court proceedings, claiming the equivalent of USD 568,533. In its court action, the applicant company indicated that it was in a very poor financial situation, having no money in its bank account after the partial payment of the court fees, as borne out by the bank statement it submitted in the proceedings. It asked for an extension of the time-limit for paying the remainder.
5. On 1 June 2004 the Appeals Chamber of the Economic Court decided not to examine the court action on account of the applicant company's failure to pay the court fees (15,000 euros (EUR)) in full. It gave the applicant company one month to pay in full. On 23 June 2004 the same court extended the time-limit for payment of the court fees until 15 September 2004.
6. The applicant company appealed, referring to its poor financial situation. It argued that Article 6 of the Convention would be violated if the courts refused to examine its case because it had no means to pay the court fees.
7. On 15 July 2004 the Supreme Court of Justice rejected the appeal, finding that the applicant company had failed to pay the court fees in full. In reply to the complaint under Article 6 of the Convention, the court stated that the lower court “had had the power to take into account the applicant company's request to pay the court fee in instalments on the ground of its poor financial situation and to order an extension of the time-limit for paying the court fee which had been set on 1 June 2004”. There was therefore no violation of the applicant company's right of access to a court.
8. On 15 September 2004 the Appeals Chamber of the Economic Court returned the applicant company's court action without examining it on account of its failure to pay the court fees in full. The applicant company did not challenge that decision before the Supreme Court of Justice.
COMPLAINT
9. The applicant company complained under Article 6 of the Convention that its right of access to court had been breached as a result of the domestic courts' refusal to examine its case.
THE LAW
10. The applicant company complained that its right of access to a court had been limited and that the principle of legal certainty had not been respected, contrary to Article 6 § 1 of the Convention, which, in so far as relevant, provides:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a tribunal ....”.
11. The Government submitted that the applicant company had not exhausted available domestic remedies since it had not appealed against the decision of 15 September 2004. The applicant company considered that such an appeal would have been futile in the light of the clear provisions of the law as interpreted by the Supreme Court of Justice in its decision of 15 July 2004.
12. The Court agrees with the applicant company that there was no reason for the Supreme Court of Justice to adopt a different decision from the one it had already adopted on 15 July 2004, given the clear legal provisions. Accordingly, this preliminary objection must be dismissed.
13. The Government submitted that the applicant company had in fact had sufficient funds to pay the court fees, as was clear from its tax records and bank statements. This evidence attested to significant sums of money having been credited to the applicant company's bank accounts prior to, during and after the period of time (1 June – 15 September 2004) when it was required to pay the court fees. These sums amounted to several times the amount of court fees due (EUR 15,000). For instance, the applicant company had received the equivalent of EUR 88,134 on 16 June 2004, the equivalent of EUR 36,415 on 20 June 2004, as well as USD 4,661 on 30 June 2004, the equivalent of EUR 29,805 on 8 July 2004, the equivalent of EUR 14,496 on 10 September 2004, and USD 14,767 on 13 September 2004.
14. The applicant company submitted that the relevant money “... was needed for another purpose which was more important at the relevant time, so that the company could not use it for paying the court fees”. Moreover, the evidence relied on by the Government had not been examined by the domestic courts.
15. The Court notes that the applicant company did not inform the Court about its real financial situation in its application and subsequent correspondence and that this information became known only from the Government's observations. Indeed, in its initial application the applicant company stated that nothing had changed in its financial situation between 15 July and 15 September 2004. However, the Court notes the undisputed fact that the applicant company received the above-mentioned sums in its bank accounts.
16. The Court notes that the applicant company did not submit any evidence to substantiate its claim that its expenses during the relevant period were unavoidable. Rather, the applicant company claimed that those expenses were “more important” than paying the court fees. This reveals a conscious choice on its 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.
17. The Court expresses its concern about the domestic courts' failure to give sufficient reasons for their decisions to demand the full payment of the court fees. However, it considers that in the exceptional circumstances of the present case the applicant company's right of access to a court has not been limited to such an extent as to render it illusory, given the undisputed fact that it had the required means to pay the fees, but chose to spend its resources elsewhere, while not disclosing this fact to the Court and the domestic authorities.
18. Accordingly, the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy