Professional Documents
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JUDGMENT
STRASBOURG
22 July 2014
FINAL
22/10/2014
This judgment has become final under Article 44 2 of the Convention. It may be
subject to editorial revision.
PROCEDURE
1. The case originated in an application (no. 36157/08) 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 incorporated in Moldova,
Grafescolo S.R.L (the applicant company), on 11 July 2008.
2. The applicant company was represented by Mr V. Nagacevschi, a
lawyer practising in Chiinu. The Moldovan Government (the
Government) were represented by their Agent, Mr L. Apostol.
3. The applicant company alleged, in particular, that it had been the
victim of unfair civil proceedings and arbitrary deprivation of property.
4. On 27 June 2012 the application was communicated to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant is a company incorporated in Moldova.
6. On 13 February 2003 the Vadul lui Voda local council adopted a
decision concerning the sale of a plot of land with a greenhouse on it to the
applicant company. Subsequently, in March 2003, a contract was entered
into for that purpose between the local council and the applicant company.
Article 83
Expiry of the limitation period prior to initiation of court proceedings constitutes a
ground for rejecting the claim.
If the competent court ... finds that the action has not commenced within the
limitation period for well-founded reasons, the right in question shall be protected.
13. The relevant provisions of the new Civil Code, in force after 12 June
2003, read:
Article 6. Effect of civil law in time
(1) The civil law does not have retroactive effect. It cannot modify or suppress the
conditions in which a prior legal situation was constituted or the conditions in which
such a legal situation was extinguished. The new law cannot alter or abolish the
previously-created effects of a legal situation which has ceased to exist or is in the
process of execution.
Article 217. The absolute nullity of a legal act
(1) The absolute nullity of a legal act can be invoked by any person having an
interest. The court can invoke it on its own motion...
(3) An action to declare the absolute nullity is not limited in time.
14. In its judgment of 20 April 2005 (case no. 2ra-563/05) the Supreme
Court of Justice dismissed the plaintiffs contentions which were based on
the provisions of the new Civil Code because the facts of the case related
to a period before the entry into force of the new Civil Code, and the
provisions of the old Civil Code were therefore applicable.
15. The relevant provisions of the Code of Civil Procedure read as
follows:
Article 105. Service of the summons...
(1) The summons ... shall be sent by registered mail with confirmation of delivery
or through a person authorised by the court. The date of service of the summons ...
shall be written on the summons, as well as on the receipt, which shall be returned to
the court.
...
(5) The summons ... addressed to a natural person shall be served on him or her
personally and shall be countersigned on the receipt. The summons ... addressed to a
legal person shall be served on the authorised employee and shall be countersigned on
the receipt; if such a person is absent, the summons shall be served on another
employee in the same conditions...
Article 441
... (2) The President of the Chamber [of the Supreme Court of Justice] shall set,
within one month, the date for hearing the appeal in cassation and inform the parties
accordingly. A copy of the appeal in cassation shall be sent to the other parties
together with a summons to attend the hearing, indicating that a written reply should
be submitted to the court not later than five days before the hearing.
Article 444
... (2) The appeal in cassation shall be examined after the parties have been
summoned. However, their failure to appear shall not prevent the examination of the
appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION
17. The applicant company complained of a violation of its right to a fair
trial, contrary to Article 6 of the Convention. In particular, it complained
that the courts had failed to apply the statute of limitations and that it had
not been summoned to the hearing before the Supreme Court of Justice. The
relevant part of Article 6 reads as follows:
1. In the determination of his civil rights and obligations ..., everyone is entitled to
a fair ... hearing ... by an independent and impartial tribunal established by law.
A. Admissibility
18. The Court notes that the 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
19. The applicant company submitted that the proceedings had been
unfair because the domestic courts had failed to apply the provisions of the
Civil Code concerning time limitation that were in force at the time the
contract of sale for the plot of land was entered into and had chosen to apply
the provisions of the new Civil Code. Moreover, the applicant company had
not been summoned to the hearing before the Supreme Court of Justice.
20. The Government disagreed with the applicant company and argued
that the statute of limitations did not apply because the domestic courts had
declared the absolute nullity of the contract of sale. Moreover, the
as to the outcome of the proceedings, had they been fair under Article 6 1
of the Convention. It therefore considers that this complaint is inadmissible
as being manifestly ill-founded, pursuant to Article 35 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. 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
29. The applicant company claimed 25,000 euros (EUR) in respect of
non-pecuniary damage and the restitution of the plot of land in respect of
the pecuniary damage.
30. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant company EUR 3,600 in respect of
non-pecuniary damage.
B. Costs and expenses
31. The applicant company also claimed EUR 2,350 for the costs and
expenses incurred before the Court.
32. The Government objected and argued that the amount claimed was
excessive.
33. Regard being had to the circumstances of the case and to the
documents submitted by the applicant company, the Court considers it
reasonable to award EUR 2,000 for costs and expenses.
C. Default interest
34. 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.
Marialena Tsirli
Deputy Registrar
Josep Casadevall
President