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THIRD
SECTION
CASE OF
BERCUT S.R.L. v. MOLDOVA
(Application
no. 32247/07)
JUDGMENT
STRASBOURG
6
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bercut S.R.L. v.
Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall, President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Mihai
Poalelungi, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32247/07)
against the Republic of Moldova lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
company registered in Moldova, Bercut SRL (“the
applicant company”), on 8 June 2007.
- The
applicant was represented by Mr A. Chiriac, a lawyer practising in
Moldova. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
3. The
applicant alleged, in particular, that the closure of the
company constituted a breach of its rights under Article 1 of
Protocol No. 1 to the Convention.
- On
20 October 2010 the Court
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company was founded in 1992 and since 1995 has, inter
alia, run a driving school, being in possession of the necessary
licence issued by the State for that purpose. On 30 June 2005 the
applicant company’s licence was renewed with a term of validity
of five years. At that time the driving school employed approximately
sixty people and had approximately 2,400 students.
- On
7 August 2006 the State Registration Chamber conducted an unannounced
check on the driving school and discovered that two of its
instructors had been replaced and that the State Registration Chamber
had not been informed of this within the ten-day time-limit provided
for by the law.
- On
10 August 2006 the State Registration Chamber issued decision no.
2985, by which the applicant company’s licence was withdrawn in
view of the irregularity.
- On
12 August 2006 the applicant company initiated court proceedings
against the State Registration Chamber, seeking the revocation of its
order of 10 August 2006. The applicant company submitted, inter
alia, that the check carried out by the defendant on 7 August
2006 had been unlawful and that it had announced to the State
Registration Chamber the changes to its personnel by letters of 19
August 2005 and 7 February 2006. In that respect the applicant
company submitted a copy of its internal register of incoming and
outgoing correspondence containing notes of two letters sent to the
State Registration Chamber.
- On
27 November 2006 the Chişinău Court of Appeal dismissed the
applicant company’s action, finding that its system of
registering correspondence was not sufficient proof. The applicant
company appealed against the judgment.
- On
21 February 2007 the Supreme Court of Justice dismissed the
applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of Law no. 451 on Licensing (“the Licensing
Act”) read as follows:
Section 19. Checks on licence holders
(2) Unannounced checks can be conducted only
on the basis of a written request in respect of a breach of licence
conditions by a licence holder.
Section 21. Withdrawal of licences
(1) (f) [A licence may be withdrawn] if
a licence holder fails to notify the appropriate authority in due
time of a change in the data contained in the annexes to an
application for a licence.
- The
relevant provisions of the Civil Code read as follows:
Article 619. Default interest
“(1) Default interest is payable for
delayed execution of pecuniary obligations. Default interest
shall be 5% above the interest rate provided for
in Article 585 [NBM refinancing interest rate] unless
the law or the contract provides otherwise. Evidence that a
lower level of damage has been incurred shall be admissible.
(2) In non-consumer-related situations
default interest shall be 9% above the interest rate
provided for in Article 585 unless the law or the contract
provides otherwise. Evidence that a lower level of damage has
been incurred shall be inadmissible.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant company complained that the withdrawal of its licence to
operate a driving school had had the effect of infringing its right
to peaceful enjoyment of its possessions as secured by Article 1 of
Protocol No. 1 to the Convention which, in so far as relevant,
provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law....”
A. Admissibility
- The
Court notes that the complaint under Article 1 of Protocol No. 1 is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that the application is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government declared that the withdrawal of the applicant company’s
licence constituted an interference with its right to property which
was disproportionate and not necessary in a democratic society. They
admitted therefore that there had been a breach of Article 1 of
Protocol No. 1 to the Convention.
- The
Court refers to its case-law in Megadat.com SRL v. Moldova,
no. 21151/04, §§ 68-79, 8 April 2008, where, in similar
circumstances, it found a breach of Article 1 of Protocol No. 1 to
the Convention. In the light of the above case-law and in view of the
Government’s clear acknowledgement of a breach, the Court
concludes that there has been a violation of Article 1 of Protocol
No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- The
applicant claimed 76,992 euros (EUR) in respect
of pecuniary damage. The applicant company took as a basis for
calculation its net post-tax profit for the year 2005 (137,117
Moldovan lei, the equivalent of EUR 8,850) for which it
calculated default interest in accordance with Article 619 of the
Civil Code for the period between 1 January 2007 and 30 April
2011. The applicant company submitted an expert report in support of
its position.
- The
Government contested the amount claimed by the applicant company and
argued, in the first place, that the applicant company’s
licence was withdrawn on 21 February 2007, when the Supreme Court
made a final ruling in the case. Therefore any calculation should
start from that date and not from 1 January 2007. Secondly, the
Government argued that after the withdrawal of its licences in
February 2007 the applicant company could have re-applied and
obtained new licences after six months. Accordingly, any lost profit
should only be calculated for a period of six months, plus the
fifteen days necessary to complete the formalities. The fact that the
applicant company had not reduced its losses by re-applying after six
months for new licences could not be held against the Government.
Alternatively, the calculation could not go beyond 30 June 2010, the
date on which the applicant company’s licences would have
expired.
- The
Court accepts that the applicant company suffered pecuniary damage as
a result of the breach of Article 1 of Protocol No. 1 found above.
Taking into account the circumstances of the case under consideration
and making its own assessment, the Court awards the applicant company
a total amount of EUR 9,000 in compensation for pecuniary damage.
B. Non-pecuniary damage
- The
applicant claimed EUR 10,000 in compensation for non-pecuniary
damage.
- The
Government contested the amount claimed and asked the Court to
dismiss it.
- The
Court considers that the applicant company must have been caused
considerable inconvenience, if only in the conduct of the company’s
everyday affairs. Deciding on an equitable basis, it awards the
applicant company EUR 4,000.
C. Costs and expenses
- The
applicant company did not make any claims for costs and expenses.
D. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 9,000
(nine thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage and EUR 4,000 (four thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into Moldovan lei at the rate applicable on the date
of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
