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THIRD
SECTION
CASE OF ASITO v. MOLDOVA (No. 2)
(Application no. 39818/06)
JUDGMENT
STRASBOURG
13 March
2012
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 Asito v.
Moldova (no. 2),
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 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39818/06)
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 QBE
Asito S.A. (“the applicant company”) on 15 September
2006.
- The
applicant company was represented by Mr E. Şlopac. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
- The
applicant company complained of an infringement of the principle of
legal certainty and alleged a violation of its right to the peaceful
enjoyment of its possessions. It also complained that it had not had
an effective remedy at its disposal.
- On
2 June 2009 the Court
decided to give notice of the application to the Government. It was
further decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is a private insurance company registered in
Moldova.
- On
7 May 1999 the applicant company signed an insurance contract with a
company, C. The insurance contract covered goods which were to be
transported to the Russian Federation.
- On
9 May 1999 the transported goods were stolen in Ukraine. On 27 July
1999 company C. assigned its insurance claim to a bank, M., which
subsequently instituted court proceedings against the applicant
company. The bank sought a court order obliging the applicant
company to pay it 901,853 Moldovan lei (MDL) to cover the amount of
the insured sum, pecuniary damage and costs and expenses.
- By
a final judgment of 14 July 2005, the Supreme Court of Justice
ordered the applicant company to pay the bank MDL 882,588 in respect
of pecuniary damage (MDL 730,000 for the insured sum and MDL 152,588
for loss of profit). It also ordered the applicant company to pay the
bank the amount of MDL 40,584 in court fees. No other claims in
respect of costs and expenses were submitted by M. at this or the
previous stage of the proceedings.
- On
4 August 2005 the bank lodged with the Supreme Court of Justice an
application under Article 249 of the Code of Civil Procedure seeking
an amendment to the final judgment of 14 July 2005. It argued
that in its judgment of 14 July 2005 the Supreme Court of Justice had
erroneously awarded M. only MDL 882,588, whereas the sum originally
in dispute was MDL 901,853. On that occasion it did not submit
any claims relating to legal fees. The applicant company disputed the
bank’s action.
- On
11 August 2005 the Supreme Court of Justice upheld the bank’s
application under Article 249 of the Code of Civil Procedure and
awarded the bank MDL 901,853.
- The
applicant company appealed against that judgment. It claimed that
Article 249 of the Code of Civil Procedure had been misused by the
Supreme Court of Justice and that the judicial formation which
examined the bank’s application under Article 249 was not a
tribunal established by law since the rules concerning the formations
of judges examining such applications had not been observed. However,
its appeal was dismissed on 20 October 2005 by the Supreme Court of
Justice. This decision was final.
- On
9 February 2006 the bank lodged with the Supreme Court of Justice
another application under Article 250 of the Code of Civil Procedure,
seeking a supplementary judgment which would cover the remainder of
the costs and expenses that it had incurred. It referred to
previously submitted payment orders confirming the payment of
MDL 94,605 in respect of court fees. It asked the Supreme Court
to award it MDL 54,021 in addition to the sum of MDL 40,584
awarded by the judgment of 14 July 2005. The applicant company
opposed this claim and argued, inter alia, that there was
no legal ground for delivering a supplementary judgment under Article
250 of the Code of Civil Procedure.
- On
21 March 2006 company C., which was not a party in the main
proceedings, lodged with the Supreme Court of Justice a similar
application under Article 250 of the Code of Civil Procedure asking
for a supplementary judgment which would cover the costs and expenses
allegedly borne by it, amounting to MDL 171,853. It invoked as a
legal ground for the application an agreement between the bank and
itself, signed on 17 March 2006, by which the bank had assigned to
company C. its claim in respect of the legal fees incurred during the
proceedings. According to the documents submitted, the bank had paid
to a law firm, Z., the amount which it claimed. The applicant company
opposed this claim and argued in its written submissions of 23 March
2006 that there was no legal ground for re-examining the case.
- On
30 March 2006 a panel of the Supreme Court of Justice examined both
requests under Article 250 of the Code of Civil Procedure. It found
that, on the basis of several payment orders submitted by the bank in
the main proceedings, the bank had spent MDL 94,604 on court
fees. Accordingly, it upheld the bank’s action and awarded it
an additional MDL 54,021 (3,246 euros (EUR)). It also found that
on 3 March 2006 the bank had paid legal fees to the law firm Z.,
in respect of the bank’s legal representation in the main
proceedings, amounting to MDL 171,853. The Supreme Court of
Justice upheld company C.’s application in part and ordered the
applicant company to pay it MDL 91,000 (EUR 5,886) in legal
fees. This decision was final and enforcement warrants were issued.
- On
3 and 30 May 2006 the judgments were enforced.
II. RELEVANT DOMESTIC LAW
- Article 96 of the Code of Civil procedure, in so
far as relevant, provides as follows:
“The court shall order the party who lost the case
to pay legal costs to the successful party ...”
Articles 249 and 250 of the same Code, in so far as relevant, provide
as follows:
Article 249. Correction of errors in a
judgment
“(1) After a judgment is delivered, the
tribunal which adopted it cannot annul or change it.
(2) The tribunal can, of its own motion or
upon the parties’ application, correct errors or omissions in
the judgment concerning [...] any other material error or obvious
calculation errors.”
Article 250. Supplementary judgment
“(1) A court which has delivered a
judgment may, of its own motion or at the request of the parties,
deliver a supplementary judgment where:
(a) it has failed to decide on a claim in respect
of which the parties to the proceedings have submitted evidence and
given explanations;
(b) while making a determination on the
disputed right, it has failed to indicate the sum awarded, the assets
to be transferred or the action which the defendant is required to
undertake;
(c) it has failed to determine the allocation
of costs and expenses among the parties or has failed to take a
decision on the requests of witnesses, translators or representatives
in respect of the fees which are due to them.
(2) An application for a supplementary
judgment shall be lodged within the period of enforcement of the
judgment. The court shall, after an examination of the application,
deliver a supplementary judgment, which may be challenged by the
means specified in the present Code.
...
(4) The dismissal of a decision in respect of
such an application may be challenged by means of an appeal on points
of law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant company complained that the judgment of 11 August 2005 had
not been delivered by a tribunal established by law since the rules
concerning the formations of judges examining such applications had
not been observed. It further complained that both this judgment and
the supplementary judgment of the Supreme Court of Justice of 30
March 2006 had breached the principle of legal certainty as
guaranteed by Article 6 § 1 of the Convention, which reads as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
applicant company also claimed that it did not
have at its disposal an effective remedy by which it could challenge
the supplementary judgment of 30 March 2006. It
relied on Article 13 of the Convention, which reads as follows:
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court points out that, even assuming that the complaints concerning
the alleged unfairness of the judgment of the Supreme Court of
Justice of 11 August 2005 are meritorious, it cannot examine them
since the applicant company has not complied with the six-month rule.
Accordingly, the complaints related to the judgment of 11 August 2005
must be rejected as being out of time, pursuant
to Article 35 §§ 1 and 4 of the Convention. The
Court further notes that the remainder of the complaints, in so far
as they relate to the judgment of the Supreme Court of Justice of
30 March 2006, are not manifestly ill-founded within the meaning
of Article 35 § 3 (a) of the Convention. It further notes that
they are not inadmissible on any other grounds. They must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant company argued that even though the
supplementary judgment had not quashed the judgment of 14 July 2005,
which was final under Article 254 of the Code of Civil Procedure, it
had varied the judgment in that it had reconsidered the sum to be
paid by the applicant company in costs. It pointed out that company
C. had not been a party to the main proceedings either before the
Economic Court of Appeal or the Supreme Court of Justice. Finally, it
argued that both the bank and company C. could at any time lodge an
action under Article 250 of the Code of Civil Procedure, thus
undermining the principle of legal certainty.
- The
Government contended that, in the judgment of 14 July 2005, the
Supreme Court of Justice had failed to address all the claims
concerning costs. In the Government’s view, this was a legal
ground for upholding the request made by the bank under Article 250
of the Code of Civil Procedure. They argued that by varying the final
judgment of 14 July 2005 the supplementary judgment of 30 March 2006
had not modified the Supreme Court’s previous findings on the
merits. They observed that the action under Article 250 of the
Code of Civil Procedure could be lodged only as long as the
enforcement of the judgment to be varied was pending. Thus, the
Government submitted that there had been no violation of the
applicant company’s right to a fair hearing.
2. The Court’s assessment
(a) General principles
- The right to a fair hearing before a tribunal as
guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which, in
its relevant part, declares the rule of law to be part of the common
heritage of the Contracting States. One of the fundamental aspects of
the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an
issue, their ruling should not be called into question (see
Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR
1999-VII, and Roşca v. Moldova, no. 6267/02, § 24,
22 March 2005).
- Legal certainty presupposes respect for the principle
of res judicata, that is, the principle of the finality of
judgments. This principle provides that no party is entitled to seek
a review of a final and binding judgment merely for the purpose of
obtaining a rehearing and a fresh determination of the case (see
Macovei and Others v. Moldova, nos. 19253/03, 17667/03,
31960/03, 19263/03, 17695/03 and 31761/03, § 42, 25 April 2006).
- Higher
courts’ powers of review should be exercised to correct
judicial errors and miscarriages of justice, not to carry out a fresh
examination. The review should not be treated as an appeal in
disguise, and the mere possibility of there being two views on the
subject is not a ground for re-examination. A departure from that
principle is justified only when made necessary by circumstances of a
substantial and compelling character (see Roşca, cited
above, § 25).
- In Roşca v. Moldova (cited above)
the Court found that the request for an annulment procedure, under
which a final judgment could be challenged indefinitely by the
Prosecutor General, was in breach of the principle of legal
certainty. A violation was found on the same grounds in Popov
v. Moldova (no. 2) (no. 19960/04, 6 December
2005), where a final judgment was quashed following an abusive
revision procedure. In both cases the Court held that the “loss”
by a litigant of a favourable judgment was incompatible with the
Convention. The same general principles were applied by the Court in
the case of Istrate v. Moldova (no. 53773/00, 13 June
2006), where it found a violation of the rule of finality of
judgments on account of misuse of appeal proceedings.
(b) Application in the present case
- Turning to the circumstances of the present case, the
Court notes that the applicant company lost in the main domestic
proceedings and was obliged to pay to M. the sum of MDL 882,588 in
respect of pecuniary damage and MDL 40,584 in respect of costs and
expenses. This judgment was final and enforceable. However, by a
supplementary judgment concerning the costs and expenses, the
applicant company was ordered under Article 250 of the Code of Civil
Procedure of 30 March 2006 to pay MDL 54,021 to the bank in
addition to the sum of MDL 40,584 awarded by the first judgment, and
MDL 91,000 to company C., which was not a party to the main
proceedings.
- The
Court further notes that, under Article 250 of the Code of Civil
Procedure, a Moldovan court may deliver a supplementary judgment if
the following requirements are met: it failed to decide on a claim in
respect of which the parties to the proceedings had submitted
evidence and had given explanations, or it failed to decide on the
allocation of costs among the parties. The Court is ready to accept
that such a procedure does not in itself contradict the principle of
legal certainty where it is used to correct miscarriages of justice
(see Pravednaya v. Russia, no. 69529/01, §§
27-28, 18 November 2004, and Popov v. Moldova (no. 2),
no. 19960/04, § 46, 6 December 2005). However, the
Court must determine whether it has been applied in a manner
compatible with Article 6 of the Convention.
- In
this regard, the Court observes that when lodging its application
under Article 250 of the Code of Civil Procedure the bank relied on
evidence which was already in the domestic case file, indicating the
pages of the case file on which the relevant evidence was to be
found. Thus, it is apparent that, as far as the application of the
bank is concerned, by delivering a supplementary judgment the Supreme
Court of Justice did not make a fresh determination on the costs in a
manner which would be incompatible with the principle of legal
certainty enshrined in Article 6 of the Convention. Therefore, the
Court finds that there has been no violation of Article 6 of the
Convention in that regard.
- As
to company C.’s application, the Supreme Court of Justice
awarded it MDL 91,000 despite the fact that company C. was not a
party to the proceedings in question and thus could not have incurred
any legal costs in those proceedings. The Court is not convinced that
this award can be justified by a representation contract between the
bank and a law firm and by the assignment of the debt by the bank to
company C. (see paragraph 13 above). The Court also notes that the
question of these costs has never been raised before the domestic
tribunals in the main proceedings.
- In the Court’s view, the supplementary
judgment of 30 March 2006, in so far as it concerned company
C.’s application, was in fact a determination of the case in
respect of new claims which had not been made before. Thus, the
amendment in question went beyond the ordinary correction of judicial
errors and miscarriages of justice and had an effect which was
incompatible with the principle of legal certainty as guaranteed by
Article 6 of the Convention, frustrating the applicant company’s
reliance on a binding judicial decision.
There
has accordingly been a violation of Article 6 § 1 of the
Convention in that regard.
- The Court does not consider it necessary to rule on
the complaint under Article 13 because Article 6 § 1 is the lex
specialis in relation to the applicant company’s complaint,
and the requirements of Article 13 in this context are absorbed by
those of Article 6 § 1 (see, mutatis mutandis, Popov
v. Moldova (no. 2), no. 19960/04, § 55, 6
December 2005).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant company also complained of a
violation of its right to the peaceful enjoyment of its possessions
as a result of the judgment of 30 March 2006. It relied on
Article 1 of Protocol No. 1, which reads as follows:
Article
1 of
Protocol No. 1
“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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The applicant company complained under Article 1 of
Protocol No. 1 that the situation created by the supplementary
judgment of 30 March 2006 amounted to a violation of its right
to the peaceful enjoyment of its possessions.
- The
Government justified the need for the supplementary judgment by
submitting payment orders which confirmed that the bank had paid an
overall amount of MDL 94,604. In their view, by awarding only
MDL 40,584 in costs and expenses, the Supreme Court of Justice
had committed a miscarriage of justice which warranted a
re-examination under Article 250 of the Code of Civil Procedure.
The Government further relied on the arguments contained in their
observations on the alleged violation of Article 6 § 1 of
the Convention submitting that, for the same reasons, there was no
violation of Article 1 of Protocol No.1.
2. The Court’s assessment
- The Court observes that as a result of the
supplementary judgment of 30 March 2006 in the present case the
applicant company lost ownership of a sum amounting to MDL 145,021
(EUR 9,268), consisting of MDL 54,021 (EUR 3,246) to
be paid to the bank in court fees and MDL 91,000 (EUR 5,886)
to be paid to company C. in legal fees. Therefore, it considers that
the applicant company had a “possession” for the purposes
of Article 1 of Protocol No. 1.
- The
Court refers to its finding in paragraph 28 above that in so far as
the bank’s application is concerned, the Supreme Court of
Justice did not make a fresh determination regarding costs in a
manner which would be incompatible with the principle of legal
certainty as guaranteed by Article 6 of the Convention.
Accordingly, the Court concludes that the interference with the
applicant company’s right to the peaceful enjoyment of its
possessions was legal and justified in so far as the payment of
MDL 54,021 (EUR 3,246) was concerned. For these reasons,
the Court finds that there has been no violation of Article 1 of
Protocol No. 1 to the Convention in this respect.
- The Court further refers to its finding in paragraph
30 above that the use of Article 250 of the Code of Civil Procedure
in respect of company C.’s application amounted to an
appeal in disguise and that in upholding company C.’s claims
the Supreme Court of Justice upset the principle of legal certainty.
Even though the outcome of the main proceedings was unfavourable to
the applicant company, the supplementary judgment of 30 March
2006 altered a legal situation which was final and resulted in a
further loss of property by the applicant company. In such
circumstances the Court cannot but find that the partial upholding of
company C.’s claims constituted an unjustified interference
with the applicant company’s right to property. The applicant
company was ordered to pay amounts of money in legal fees in addition
to those determined by the final judgment delivered in the main
proceedings. Even assuming that such an interference may be regarded
as serving a public interest, the Court finds that it was not
justified since a fair balance was not preserved and the applicant
was required to bear an individual and excessive burden (see, mutatis
mutandis, Brumărescu v. Romania [GC], no. 28342/95, §§
75-80, ECHR 1999-VII; Roşca, cited above, § 32; and
Popov (2), cited above, § 58).
For
these reasons, the Court finds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention.
III. 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. Damage
- The
applicant company claimed MDL 613,777 (EUR
39,145) in respect of pecuniary damage, consisting of the amount it
had unduly paid and of an amount of MDL 468,756 on account of lost
profit, according to calculations taking into account its return on
investment for the period from May 2006 to December 2010 plus
compound interest. It also claimed MDL 500,000 (EUR 31,888) in
respect of non-pecuniary damage.
- The
Government disagreed with the amounts claimed by the applicant
company. In respect of the pecuniary damage, they argued that there
was no causal link between the alleged violation and the amount
claimed. Furthermore, the company had not proved that it had actually
sustained that damage. Thus, it considered that the applicant company
was not entitled to receive compensation in respect of pecuniary
damage. In respect of the non-pecuniary damage, the Government argued
that the amount claimed was excessive in the light of the case-law of
the Court.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach
(see Former King of Greece and Others v. Greece [GC] (just
satisfaction), no. 25701/94, § 72). In the present
case the reparation should aim to put the applicant company in the
position in which it would have found itself had the violation not
occurred.
- The
Court considers that the applicant company must have suffered
pecuniary damage as a result of the breach of its Convention rights.
However, the Court is unable to accept the approach taken by
the applicant company in assessing the loss suffered.
In so
far as the non-pecuniary damage is concerned, the Court takes the
view that the applicant company has suffered some non-pecuniary
damage as a result of the violations found which cannot be made good
by the mere finding of a violation. The particular amount claimed is,
however, excessive.
Taking
into account the circumstances of the case under consideration and
making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the applicant company the
overall amount of EUR 15,000 in respect of both pecuniary and
non-pecuniary damage.
B. Costs and expenses
- The
applicant company also claimed MDL 5,400 (EUR
345) for the costs and expenses incurred before the Court.
- The
Government disagreed. They pointed out that this claim was
unsubstantiated.
- The
Court notes that the applicant company has not submitted any document
in support of its claim. Regard being had to
its case-law, according to which it must be established that
the costs were actually and necessarily incurred and are reasonable
as to their quantum (see, for example, Nilsen and Johnsen v.
Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII), the Court
rejects the claim for costs and expenses for the proceedings before
the Court.
C. 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 complaints concerning the judgment
of 11 August 2005 inadmissible and the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 in so far as
the Supreme Court of Justice delivered a supplementary judgment in
respect of company C’s claims;
- Holds that there has been no violation of
Article 6 of the Convention and of Article 1 of Protocol No. 1 in so
far as the Supreme Court of Justice delivered a supplementary
judgment in respect of the bank’s claims;
- Holds that there is no need to examine the
complaint under Article 13 of 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 15,000 (fifteen thousand euros) to
cover both pecuniary and non-pecuniary damage, to be converted into
Moldovan lei at the rate applicable at 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 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
