I incorrectly predicted that there's no violation of human rights in CARPOV v. THE REPUBLIC OF MOLDOVA.

Judgment

SECOND SECTION

CASE OF CARPOV v. THE REPUBLIC OF MOLDOVA

(Application no. 6338/11)

JUDGMENT

STRASBOURG

12 February 2019

This judgment is final but it may be subject to editorial revision. In the case of Carpov v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Julia Laffranque, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 22 January 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6338/11) 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 Moldovan national, Mr Sergiu Carpov (“the applicant”), on 13 January 2011. 2. The applicant was represented by Mr V. Duca, a lawyer practising in Orhei. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3. On 20 December 2017 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1963 and lives in Orhei. 5. In September 2009 the applicant initiated civil proceedings against a company which was in process of insolvency. 6. On 18 December 2009 the Drochia District Court found in favour of the applicant and ordered the defendant company to pay him 24,957 Moldovan Lei (MDL) (the equivalent of 1,413 euros (EUR)) for pecuniary damage and MDL 749 (the equivalent of EUR 42) for costs and expenses. The representative of the defendant company was not present at the hearing. 7. On 28 December 2009 the secretariat of the Drochia District Court sent a copy of the reasoned judgment to the defendant company by ordinary mail. 8. On 11 January 2010 an enforcement writ was issued to the applicant by the same court in respect of the judgment of 18 December 2009. 9. On 10 February 2010, in a different set of proceedings concerning the insolvency of the defendant company, the company’s insolvency administrator updated the list of creditors by making express reference to the judgment of 18 December 2009 and to the exact amounts awarded in that judgment. The court which treated the insolvency issued a decision concerning the updated list of creditors on the same date. 10. On 26 April 2010 the insolvency administrator of the defendant company lodged an appeal against the judgment of 18 December 2009. The applicant objected to the appeal by arguing that it had been time-barred. He indicated that the time-limit for lodging the appeal had expired twenty days after the serving of the impugned judgment and that the insolvency administrator of the defendant company had been aware of the judgment of 18 December 2009 since in February 2010 he had informed the court dealing with the insolvency proceedings about the judgment in question. 11. On 28 September 2010 the Bălţi Court of Appeal admitted the appeal lodged by the insolvency administrator of the defendant company and quashed the judgment of 18 December 2009. The Court of Appeal did respond to the objection raised by the applicant and, after re-examining the merits of the case, dismissed the applicant’s action against the defendant company. The applicant lodged an appeal on points of law raising the same arguments as in his appeal. 12. On 26 January 2011 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the judgment of the lower court. The Supreme Court did not make any comment about the applicant’s objection concerning the late appeal. II. RELEVANT DOMESTIC LAW
13. According to Article 362 of the Code of Civil Procedure, as in force at the material time, a judgment issued by a first instance court could be challenged by way of an appeal within twenty days as from the date of service of the reasoned judgment. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14. The applicant complained that the Bălţi Court of Appeal’s decision to quash the judgment of 18 December 2009, which was in his favour, following an appeal which had been lodged out of time, had breached his right to a fair trial under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
A. Admissibility
15. 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
16. The applicant argued that the judgment of 18 December 2009 was sent to the defendant company on 28 December 2009. Since no appeal was lodged by the defendant it became final and an enforcement writ was issued on 11 January 2010. The defendant company received the judgment in question and on 10 February 2010 its insolvency administrator provided the court dealing with the insolvency procedure with details from the judgment. The appeal lodged by the defendant company in April 2010 was lodged out of time. Therefore, the Court of Appeal’s decision to admit the appeal lodged by the defendant company amounted to a breach of Article 6 § 1 of the Convention. 17. The Government submitted that the defendant company’s representative was not present at the hearing of 18 December 2009 when the impugned judgment was delivered. He learned about that judgment only on 23 April 2010 when he requested a copy of the judgment from the secretariat of the Drochia District Court. He lodged the appeal three days later, namely within twenty days from the moment when he received a copy of the impugned judgment. Therefore, the appeal was lodged within the statutory time-limit. The Government did not deny the fact that, on 28 December 2009, the secretariat of the Drochia District Court sent a copy of the judgment of 18 December 2009 to the defendant company. However, they argued that there was no evidence that the defendant company had received it. Therefore, the twenty-day time limit shall not be calculated from that day, but from 23 April 2010. 18. The Court reiterates that 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). 19. In Roşca v. Moldova, no. 6267/02, 22 March 2005, the Court found that the request for 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 in a manner incompatible with Article 6. In both cases the Court held that the “losing” by a litigant of a final favourable judgment was incompatible with the Convention. 20. In the present case, the applicant also “lost” a judgment favourable to him. The dispute between the parties is whether the appeal dated 26 April 2010 was lodged within the legal time-limit in the sense of Article 362 of the Code of Civil Procedure. 21. The Court notes that it is undisputed between the parties that on 28 December 2009 the Drochia District Court sent a copy of the judgment dated 18 December 2009 to the defendant company. The Government disputed the fact that that copy had reached the defendant and argued that there was no evidence of receipt. Nevertheless, they did not offer any explanation to the fact that on 10 February 2010 the insolvency administrator of the defendant company was aware of the judgment and that he knew about the exact amounts of compensation awarded by it (see paragraph 9 above). In the absence of any plausible explanation, the Court considers it established that the defendant company received a copy of the judgment at the latest on 10 February 2010. In such circumstances, the appeal dated 26 April 2010 appears to have been lodged clearly outside the twenty-day time‐limit provided for by Article 362 of the Code of Civil Procedure. 22. The Court further notes that, by allowing the appeal lodged by the defendant company, the Court of Appeal and later the Supreme Court of Justice set at naught an entire judicial process which had ended in a final and enforceable judicial decision and thus res judicata. Thus, they infringed the principle of legal certainty and breached the applicant’s right to a fair hearing under Article 6 § 1 of the Convention (see Brumărescu v. Romania, cited above, §§ 61 and 62). 23. There has thus been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
24. The applicant complained that the quashing of the judgment of 18 December 2009 had had the effect of infringing his right to peaceful enjoyment of his possessions as secured by Article 1 of Protocol No. 1, which 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. 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
25. 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
26. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). 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 (cf. Brumărescu, cited above, § 75-80). 27. It follows that there has been a violation of Article 1 of Protocol No. 1 to 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. Pecuniary Damage
29. The applicant claimed EUR 3,200 for pecuniary damage suffered as a result of the quashing of the final judgment favourable to him, of which MDL 24,957 was the amount he was entitled to by virtue of the final judgment of the Drochia District Court of 18 December 2009 and the rest corresponded to the lost interest calculated by him on the basis of the provisions of the Civil Code concerning the calculation of default interest. 30. The Government asked the Court to dismiss the applicant’s claims for pecuniary damage. 31. The Court considers that the applicant must have suffered pecuniary damage as a result of the impossibility to use and enjoy the money awarded to him by the final judgment of 18 December 2009 (see Prodan v. Moldova, no. 49806/99, § 71, ECHR 2004‐III (extracts). Taking into consideration the circumstances of the case under consideration, the Court awards the applicant the sum of EUR 2,500 for pecuniary damages. B. Non-Pecuniary Damage
32. The applicant claimed EUR 2,500 for the non-pecuniary damage suffered as a result of the quashing of the final judgment favourable to him. 33. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 34. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the quashing of the final judgment of 18 December 2009 and of the impossibility to use his money for a period of approximately nine years. It awards him EUR 2,000 for non-pecuniary damage. B. Costs and expenses
35. The applicant also claimed EUR 1,480 for the costs and expenses incurred before the Court. 36. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 37. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses. C. Default interest
38. 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,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 1,480 (one thousand four hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Julia LaffranqueDeputy RegistrarPresident