THIRD SECTION
DECISION
Application no. 50857/08
Semion TOPOROVSCHI
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 21 April 2015 as a Committee composed of:
Kristina Pardalos, President,
Valeriu Griţco,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 9 April 2008,
Having regard to the observations submitted by the Moldovan Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Semion Toporovschi, is a Moldovan national, who was born in 1961 and lives in Chișinău. He was represented before the Court by Mr S. Goțonoga, a lawyer practising in Chișinău.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1996-1997 the applicant was a member of the Board of the Vias Bank and also the director of the Vias Corporation and member of the Board of the Vibropribor Company.
5. In 1996 he was accused of a number of crimes, all related to the alleged abuse of his positions in the various companies noted above, notably fraud.
6. One of the ten charges, which had been the subject of criminal proceedings, concerned a loan issued by the Vias Bank to Vibropribor Company on 8 August 1997 and which had allegedly been misappropriated. This particular loan and the events that followed were the subject of proceedings in the case of Banca Vias v. Moldova, no. 32760/04, 6 November 2007. According to the applicant, there is a connection between the decision to reopen the criminal investigation in his case and the proceedings before the Court which ended with the judgment in Banca Vias, cited above.
7. On 9 June 2006 the Botanica District Court acquitted the applicant of all the charges for lack of proof. The judgment was appealed, among others, by the Vias Bank, which had the procedural standing of civil party.
8. On 1 December 2006 the Chişinău Court of Appeal upheld the lower court’s judgment, annulling only the part of the judgment concerning the civil law claims filed by several private parties, including Vias Bank.
9. No appeal on cassation was lodged against that judgment within the two months allowed and it therefore became final on 1 February 2007.
10. According to the applicant, by a letter of 19 December 2006 the Prosecutor General’s Office replied to a Member of Parliament that it had no reason to appeal the above judgments since no errors of fact or law were apparent and no legal issue of general importance had been raised by those judgments. The applicant also submitted that on 2 April 2007, prosecutor S. B. issued an information note, in which he essentially repeated the statement made in the letter of 19 December 2006.
11. The Government disputed the veracity of the letter of 19 December 2006 because it lacked an exit registration number and contended that such a letter had never been officially sent by the Prosecutor General’s Office. They submitted a letter dated 11 December 2006 by which the Prosecutor General’s Office replied to the same Member of Parliament that it was not entitled to appeal the appellate judgment because it became final after its delivery. That letter did not contain any statements about the absence of errors. They also submitted a letter dated 11 December 2006 by which prosecutor S.B. informed a civil party about the outcome of appeal proceedings and about his intention to consider lodging an appeal in cassation once the full text of the judgment of 1 December 2006 was served on him.
12. On 2 October 2007 the Prosecutor General’s Office lodged an appeal in cassation against the judgment of 1 December 2006. The appeal was signed by prosecutor S. B.
13. The applicant asked the court to reject that appeal as being time‑barred, referring to Article 422 of the Code of Criminal Procedure (see paragraph 17 below).
14. On 19 February 2008 the Supreme Court of Justice accepted the appeal in cassation lodged by the Prosecutor General’s Office and ordered a rehearing of the case by the Chişinău Court of Appeal. The court found that according to a note in the file, the prosecutor had obtained a copy of the appellate decision on 17 January 2007 and argued that for this reason the appeal submitted on 2 October 2007 was not time-barred.
15. On 18 December 2008 the Chişinău Court of Appeal reheard the case and adopted the same judgment as on 1 December 2006. The Supreme Court of Justice finally upheld that judgment on 19 May 2009.
16. By a letter of 25 November 2011 the applicant informed the Court that he intended to make use of the new remedy created to address complains about unreasonable length of proceedings, in accordance with Law no. 87. He did not dispute the effectiveness of the new remedy.
17. By a letter of 23 August 2014 the applicant informed the Court that he had initiated proceedings under Law no. 1545 seeking compensation of damages resulted from unlawful prosecution and that on 23 April 2014 the Supreme Court of Justice dismissed his claims as time-barred.
B. Relevant domestic law
18. Pursuant to Article 422 of the Code of Criminal Procedure, as worded at the time of the events, an appeal in cassation may be lodged within two months from the delivery of the appellate judgment, unless the law provided otherwise, and in case the full text of the judgment is provided at a later date, from the date when the parties are informed in writing about the signature of the full judgment text. Pursuant to Article 432 of the Code of Criminal Procedure, as worded at the time of the events, an appeal in cassation shall be considered inadmissible if lodged outside the legal time‑limit. Pursuant to Article 466 of the Code of Criminal Procedure, an appellate judgment shall become final after no appeal in cassation is lodged within the allowed time-limit.
19. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012.
20. Law No. 1545 of 25 February 1998 provides for compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts to be paid to persons acquitted in criminal proceedings. The relevant provisions of the Law were set out in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005.
COMPLAINTS
21. The applicant complained under Article 6 of the Convention that the length of proceedings had been excessive.
22. The applicant also complained under Article 7 of the Convention that the Supreme Court of Justice failed to provide reasons in its judgment of 19 February 2008 for remitting the case for a fresh examination.
23. The applicant further complained under Article 4 of Protocol No. 7 to the Convention that the reopening of the criminal proceedings had resulted in a repeated prosecution for the same facts of which he had already been acquitted by the final judgment of 1 December 2006.
24. The applicant complained in essence under Article 18 of the Convention read in conjunction with Article 6 of the Convention that the reopening of the criminal proceedings against him had the purpose to discourage him from claiming the money awarded by the Court in the case of Banca Vias, cited above.
THE LAW
A. Complaint about the unlawful quashing of a final judgment
25. Relying on Article 7 of the Convention and on Article 4 of Protocol No. 7 to the Convention, the applicant complained that the Supreme Court’s judgment of 19 February 2008 quashed the final judgment of 1 December 2006 and reopened proceedings without sufficient reasons and in violation of the ne bis in idem principle by upholding a time-barred appeal.
26. This complaint was communicated under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
27. The Government argued that the applicant had lost his victim status due to the fact that, after rehearing the case, the courts have finally acquitted him on 19 May 2009. The Government also argued that after his final acquittal, the applicant failed to claim compensation under Law no. 1545.
28. The applicant did not comment on this.
29. The Court notes that an acquitted defendant can no longer claim to be a victim of alleged violations of the Convention during the proceedings (see X. v. Austria, no. 5575/72, Commission decision of 8 July 1975, Decisions and Reports (DR) 1, p. 44; and X. v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223). This conclusion, however, can only be drawn where the applicant is no longer affected at all, having been relieved of any effects to his or her disadvantage (see Jón Kristinsson v. Iceland, judgment of 1 March 1990, Series A no. 171-B, opinion of the Commission, p. 48, § 36; and Correia de Matos v. Portugal (dec.), no. 48188/99, 15 November 2001). The Court also recalls that an acquittal does not in itself deny the person concerned the status of a victim in respect of excessive delays (Wall v. Poland (dec.), no. 58369/00, 1 October 2002).
30. The Court notes that after the reopening of the criminal proceedings against him, the applicant was again acquitted by a final judgment. There is no indication that the applicant suffered any continuing prejudice.
31. Accordingly, the Court, having regard to its case-law, considers that the applicant cannot claim to be a victim of the alleged violation of the Convention, as required by Article 34.
32. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention.
B. Complaint about the excessive length of proceedings
33. The applicant complained that the length of proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
34. The Court recalls that in Balan v. Moldova ((dec.), no. 44746/08, 24 January 2012) and Manascurta v. Moldova ((dec.), no. 31856/07, 14 February 2012) it has held that the new remedy introduced by Law no. 87 was designed to address the issue of delayed enforcement of judgments and excessive length of proceedings and that it was not ineffective. It was also held that in spite of the fact that the new remedy only became available after the introduction of those applications, the applicants were obliged to use it and that using it did not constitute and excessive burden for those applicants and for other applicants in a similar position.
35. The Court notes that in the present case the applicant agreed to use the new remedy under Law no. 87. He did not dispute the effectiveness of the new remedy. It notes, however, that the applicant had not informed the Court about having instituted and completed such proceedings.
36. It follows that the applicant’s complaint about the excessive length of proceedings must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. Complaint about limitation on use of restrictions on rights
37. The applicant also complained under Article 18 of the Convention taken together with Article 6 that the reopening of the criminal proceedings against him was abusive. He claimed that by reopening proceedings the authorities intended to discourage him from claiming the money awarded by the Court in the case of Banca Vias.
38. The Government submitted that there were no indications in the present case that the criminal proceedings in respect of the applicant had been reopened for any purpose other than to rectify a miscarriage of justice. They claimed that the applicant had failed to put forward any specific arguments in support of his complaint of an ulterior motive.
39. The applicant did not comment on this.
40. The Court notes that the applicant had not substantiated in any way his entitlement to the money awarded under the Court judgment Banca Vias or that the continuation of criminal proceedings in his respect depended in any way on that entitlement. The Court concludes, therefore, that the applicant’s claim is unsubstantiated.
41. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 May 2015.
Marialena TsirliKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy