SECOND SECTION
DECISION
Application no. 31052/04
Svetlana and Vladimir VOLTMAN
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:
Nebojša Vučinić, President,
Ksenija Turković,
Georges Ravarani, judges,
and Hasan Bakirci, Deputy Section Registrar.
Valeriu Griţco, the judge elected in respect of the Republic of Moldova, withdrew from sitting in the Committee (Rule 28).
Having regard to the above application lodged on 10 July 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Svetlana Voltman and Mr Vladimir Voltman, are Israeli nationals, who were born in 1960 and 1959 respectively and live in Chișinău. They were represented before the Court by Mr V. Turcan and as of 19 July 2011 by Mr V. Nagacevschi, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants have been married to each other since 1981. They are private investors and shareholders in a private company (E.) registered in Chişinău.
4. On an unspecified date they bought a building located in Chişinău.
5. In 2002 company E. decided to increase its registered capital by adding that building to its assets. Subsequently, the second applicant became that company’s deputy chairman.
6. On 14 March 2003 the second applicant signed a contract selling his shares to the company.
7. On 22 July 2003 the applicants instituted court proceedings against the company, its chairman, the subsequent buyers of the shares, and the independent company register which registered the shares’ transfer, claiming that the contract was void as it had been concluded under duress.
8. On 27 October 2003 the Botanica District Court upheld the applicants’ claim. It annulled the sales contract between the applicant and the company, as well as all subsequent transactions concerning those shares. The company appealed.
9. On 11 December 2003 the Chişinău Court of Appeal quashed that judgment and dismissed the applicants’ claim. The appellate court’s decision contained its operative part only. The reasoned part of the decision was to be drafted later.
10. On 15 December 2003 the applicant lodged a preliminary appeal on points of law with the Supreme Court of Justice. They stated expressly that a full appeal would be lodged upon receipt of the reasoned part of the challenged decision of 11 December 2003.
11. On 4 February 2004 the Supreme Court of Justice dismissed the appeal on points of law as being ill-founded.
12. On 10 February 2004 the applicants received the reasoned part of the appellate court’s decision of 11 December 2003. On the same day they lodged a reasoned appeal on points of law.
13. However, on 25 February 2004 the Supreme Court of Justice rejected their appeal applying the res judicata principle.
14. The present case was communicated to the Government on 8 March 2010.
15. On 1 August 2011 the applicants’ new representative notified the Court that the applicants wished to withdraw the complaints under Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention “given the circumstances of the case and the Court’s case-law.”
16. On 7 May 2015 the Agent of the Government initiated revision proceedings before the domestic courts. On 17 June 2015 the Supreme Court of Justice quashed its judgments of 4 February 2004 and 25 February 2004 and re‑opened the proceedings ordering re-examination of the applicants’ appeal on points of law. In so doing, the Supreme Court found a breach of Article 6 of the Convention admitting that the applicants had not benefitted from a fair trial since their appeal on points of law had been rejected unlawfully. In connection with that breach the Supreme Court awarded the applicants EUR 1,800 for non-pecuniary damage and MDL 10,000 for costs and expenses.
17. The proceedings were terminated with the examination of the applicants’ appeal on points of law which was subsequently dismissed by the Supreme Court of Justice on 30 September 2015. On 29 March 2016 the applicants lodged a new application registered under no. 24361/16, alleging a violation of Articles 6 and 13 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention.
COMPLAINTS
18. The applicants complained under Article 6 of the Convention that their right to a fair hearing by an impartial tribunal established by law had been breached as a result of the domestic judgments dated 4 February 2004 and 25 February 2004.
19. In their application form, they also complained that the Supreme Court’s failure to examine their appeal on points of law had amounted to a violation of their right to an effective remedy under Article 13 of the Convention and of their right to property under Article 1 of Protocol No. 1 to the Convention. On 1 August 2011 the second appointed representative notified the Court that the applicants wished to withdraw the complaints under Article 13 and Article 1 of Protocol No. 1.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention due to the failure to examine the applicants’ appeal on points of law
20. The applicants complained that the failure of the Supreme Court of Justice to examine their appeal on points of law had constituted a breach of Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
21. The Government argued that the applicants had lost their victim status since on 17 June 2015 the Supreme Court of Justice had expressly acknowledged the violation of the applicants’ right to a fair trial and awarded them compensation for non-pecuniary damage in that respect. Moreover, on 30 September 2015 the Supreme Court of Justice examined their appeal on points of law under all aspects, but nonetheless dismissed it as manifestly ill-founded. Therefore, the Government asked the Court to dismiss the applicants’ complaints under Articles 6 § 1 and 13 of the Convention because they could no longer claim to be “victims” of any violation in that respect.
22. The Court reiterates that in order for an applicant to be able to claim to be the victim of a violation, within the meaning of Article 34 of the Convention, not only must he have the status of victim at the time the application is introduced, but such status must continue to exist at all stages of the proceedings. A decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999‑VI).
23. The Court notes that after the communication of the case to the Government the proceedings were re-opened. The Supreme Court acknowledged a breach of Article 6 of the Convention in respect of the above complaint and awarded the applicants sufficient compensation. Moreover, the applicants were able to submit their arguments before the Supreme Court, which offered the guarantees set forth in Article 6 § 1 of the Convention and addressed those arguments in a duly reasoned judgment. In such circumstances, the Court considers that the applicants can no longer claim to be “victims” of a violation of Article 6 in relation to the above complaint and that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 13 of the Convention and Article 1 of Protocol no. 1 to the Convention
24. In his letter dated 1 August 2011 the applicants’ representative informed the Court that the applicants wished to withdraw their complaints under Article 13 of the Convention and Article 1 of Protocol no. 1 to the Convention “given the circumstances of the case and the Court’s case-law.”
25. The Court takes note that the applicants do not intend to pursue the above complaints within the meaning of Article 37 of the Convention, which so far as material, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; ..
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
26. The Court considers that respect for human rights as defined in the Convention and its Protocols does not require continuing the examination of the complaints under Article 13 of the Convention and Article 1 of Protocol no. 1 to the Convention. It, therefore, decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention.
For these reasons, the Court, unanimously,
Declares the complaint under Article 6 § 1 of the Convention inadmissible;
Decides to strike out the remainder of the application.
Done in English and notified in writing on 6 October 2016.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
Full & Egal Universal Law Academy