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

Judgment

SECOND SECTION

CASE OF FURTUNĂ v. THE REPUBLIC OF MOLDOVA
(Application no. 72636/13)

JUDGMENT

STRASBOURG
23 June 2020

This judgment is final but it may be subject to editorial revision. In the case of Furtună v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Arnfinn Bårdsen, President,Valeriu Griţco,Peeter Roosma, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application 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 Vasile Furtună (“the applicant”), on 15 November 2013;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;
the parties’ observations;
Having deliberated in private on 26 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The application concerns an alleged scheme to defrauding the applicant with the involvement of the Bălţi Court of Appeal and the State organs responsible for the enforcement of final judgments. In particular, the applicant alleged that a final judgment of 2006 awarding him the equivalent of some 66,000 euros (EUR) and enforced in 2007 had been abusively quashed in 2013 as a result of an appeal lodged out of time. After the quashing and before the Supreme Court of Justice had had a chance to annul the quashing, the enforcement of the above initial judgment was reversed and the defendant quickly disposed of all its property. The Supreme Court of Justice restored the initial judgment, but to no avail because the applicant was never able to recover his money. THE FACTS
1. The applicant was born in 1951 and lives in Drochia. He was represented by Ms I. Soțchi, a lawyer practising in Chișinău. 2. The Government were represented by their Agent, Mr O. Rotari. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Between 1995 and 2005 the applicant was employed by a company called L. In 2001 L. discontinued the payment of the applicant’s salary. On 23 February 2006 the applicant initiated proceedings against N.I., a trust fund administering L., seeking payment of salary arrears and interest. 5. By a judgment of 22 May 2006, the Drochia District Court found in favour of the applicant and ordered L. to pay him 1,095,725 Moldovan lei (MDL – the equivalent of 65,906 euros (EUR)). Neither L. nor N.I. challenged the judgment and it became final on 6 June 2006. 6. On 3 January 2007 the Drochia Department for the Execution of Judgments issued the record of the execution of the above judgment. Since L. did not have sufficient money to cover the judgment debt, the bailiff seized and transferred several movable and immovable goods into the applicant’s ownership. On 21 March 2007 the applicant registered his ownership title over the above property with the local land registry office. 7. On 22 March 2011 L. lodged an appeal against the judgment of 22 May 2006. It argued that it had received a copy of the judgment of 22 May 2006 only on 4 March 2011. 8. On 28 February 2012 the Bălţi Court of Appeal dismissed the appeal for being lodged out of time. It found inter alia that, while there was no proof of the fact that the judgment of 22 May 2006 had been served on N.I.’s representative, N.I. had certainly known about the judgment after its enforcement in January 2007. The fact that N.I. had not sought to obtain a copy until March 2011 was not a valid excuse justifying the extension of the twenty-day time-limit for lodging the appeal. 9. L. challenged the above decision with an appeal on points of law; however, the Supreme Court of Justice dismissed it on 1 June 2012. 10. On 6 September 2012, L. lodged an application for extraordinary review (revizuire) of the judgment of 22 May 2006. It argued, inter alia, that an audit had been carried out on 18 June 2012 and that, according to the conclusions in it, the amount awarded in the judgment of 22 May 2006 had been too high. 11. On 8 November 2012 the Drochia District Court dismissed the application for extraordinary review as ill-founded. L. lodged an appeal on points of law against that judgment. 12. On 31 January 2013 the Bălţi Court of Appeal dismissed the appeal on points of law and upheld the judgment of the Drochia District Court of 8 November 2012. 13. On 14 March 2013 N.I. lodged a new appeal against the judgment of 22 May 2006. This time, it argued that it had found out that the judgment of 22 May 2006 had been sent by the Drochia District Court to an address which had not been valid at the time of sending. It also argued that it had learned of the judgment of 22 May 2006 only on 28 February 2013. 14. On 16 May 2013 a panel of the Bălţi Court of Appeal composed of Judges A.G., V.H. and N.C. held a public hearing in the case. 15. In a decision dated 16 May 2013 a different panel of judges composed of A.G., A.R. and N.C. accepted the new arguments adduced by N.I., including the one according to which N.I. had learned of the judgment of 22 May 2006 only on 28 February 2013, and decided to extend the time-limit for lodging its appeal. 16. On 2 July 2013 a panel of the Bălţi Court of Appeal composed of judges A.G., N.C. and A.R. upheld the appeal lodged by N.I. and quashed the judgment of the Drochia District Court of 22 May 2006. In so doing, it dismissed the applicant’s arguments to the effect that the allowing of the appeal lodged out of time would result in a breach of the principle of legal certainty. The applicant challenged this judgment with an appeal on points of law. 17. On the same date, 2 July 2013, the Bălţi Court of Appeal issued an enforcement writ, ordering the reversal of the enforcement of the judgment of 22 May 2006. 18. On 18 January 2014 N.I. transferred the property which it had obtained from the applicant to a third company, to cover a debt. 19. On 6 March 2014 the Supreme Court of Justice upheld the applicant’s appeal on points of law against the judgment of the Bălţi Court of Appeal of 2 July 2013. In so doing, the Supreme Court found that the allowing of N.I.’s appeal by the Bălţi Court of Appeal had been an abuse and contrary to the principle of legal certainty and finality of judgments. The Supreme Court ordered a fresh examination of N.I.’s appeal by the Bălţi Court of Appeal. 20. On 8 April 2014 the Bălţi Court of Appeal re-examined N.I.’s appeal against the judgment of 22 May 2006 and rejected it for being lodged out of time. N.I. lodged an appeal on points of law, but it was rejected by the Supreme Court of Justice on 11 June 2014. 21. On 19 March 2015 the applicant applied to the Drochia District Court for a writ of enforcement of the judgment of 22 May 2006. However, the court refused to issue it on the grounds that such a writ had already been issued in 2007 and enforced. 22. The applicant lodged a request with the authority responsible for the enforcement of court judgments. It informed him that he needed to obtain a duplicate of the writ from the Drochia District Court. 23. The applicant’s application to obtain a duplicate of the enforcement writ was dismissed by the Drochia District Court on 24 August 2018 on the grounds that the applicant had not provided evidence that the initial writ had been lost or damaged. The applicant challenged the refusal before the Bălţi Court of Appeal, but without any success and, to date, he has been unable to recover his money from N.I. RELEVANT LEGAL FRAMEWORK
24. Under 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 of the date a reasoned judgment. 25. According to the case-law of the Supreme Court of Justice, a litigant is expected to act with due diligence and in good faith and to enquire about the progress of the proceedings to which he or she is a party within a reasonable time. It is not open to parties to proceedings to disregard them for lengthy periods of time and to rely on their own passivity and lack of diligence in support of an application to extend a time-limit to lodge an appeal. The above principles were restated in numerous Supreme Court of Justice judgments, including Oferta Plus v. S.A. Seminte Nord (28 May 2009, case no. 2rae-130/09), Balan and Balan v. Asociația Proprietarilor de Locuințe Privatizate, Nr. 51/162 COOP (5 December 2018, case no. 2ra‐2467/18) and Prus v. the Ministry of Justice (19 December 2018, case no. 2ra-2422/18). THE LAW
26. The applicant complained that the Bălţi Court of Appeal’s decisions to quash the judgment of 22 May 2006, following an appeal lodged by the opposing party outside of the legal time‐limit, had breached his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which reads 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. ...”
27. The Government submitted in the first place that the application was inadmissible for the applicant’s failure to exhaust domestic remedies. In particular, the applicant could have but had not applied for interim measures in the form of an attachment of the disputed goods pending the examination of the reopened proceedings. In so far as the merits of the complaint were concerned, the Government submitted that the allowing of N.I.’s appeal lodged out of time by the Bălţi Court of Appeal had not been contrary to Article 6 § 1 of the Convention because it had pursued the goal of correcting judicial errors and omissions, rather than having a fresh examination of the case. 28. The applicant submitted that he had not been able to seek the attachment of goods which had been in his possession during the proceedings before the Bălţi Court of Appeal, because that would have been contrary to the provisions of the Code of Civil Procedure. In any event, N.I. had had other creditors. After the quashing of the Drochia District Court judgment of 22 May 2006, all the goods belonging to N.I. had been due to be split among all of N.I.’s creditors by automatic operation of law. The only legal possibility for the applicant to prevent this had been to apply for a stay of the enforcement proceedings under Articles 80 and 81 of the Code of Enforcement of Judgments. However, for that he would have been required to transfer to the bailiffs 120% of the value of the goods, an amount which he had not possessed. 29. The Court reiterates that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014). The burden of proof is on the Government to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (Manic v. Lithuania, no. 46600/11, § 80, 13 January 2015). 30. In the present case the applicant complained about the quashing of a final judgment favourable to him as a result of the allowing of an appeal lodged out of time. The only available remedy against that quashing was an appeal on points of law lodged before the Supreme Court of Justice, a remedy used by the applicant. The remedy suggested by the Government was not capable of providing redress for the problem raised by the applicant, that is to say overturning the quashing of the final judgment in his favour. It is true that, in theory, if available, an attachment of the goods in dispute could have mitigated the damage caused to the applicant; however, in view of the state of domestic legislation, that appears debatable and, most importantly, irrelevant for the purposes of deciding the admissibility of the present complaint. 31. The Court finds, therefore, that the complaint cannot be declared inadmissible for non-exhaustion of domestic remedies and accordingly the Government’s objection must be dismissed. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 32. 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 declares, among other things, 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). 33. In Carpov v. the Republic of Moldova (no. 6338/11, 12 February 2019 [Committee]), the Court found that the allowing of an appeal lodged out of time by the Chişinău Court of Appeal had been in breach of the principle of legal certainty. The Court held that the “loss” by a litigant of a final favourable judgment had been incompatible with the Convention. 34. Turning to the facts of the present case, the Court notes that the Supreme Court of Justice ruled in its judgment of 6 March 2014 that the extension of the time-limit for N.I. to lodge its appeal and the subsequent quashing by the Bălţi Court of Appeal of the Drochia District Court’s judgment of 22 May 2006 had been an abuse and contrary to the principle of legal certainty and finality of judgments. The Court sees no reason to disagree with that ruling, especially since it finds it striking that the Bălţi Court of Appeal accepted with such ease N.I.’s arguments to the effect that it had only learned of the judgment of 22 May 2006 on 28 February 2013, while in another appeal dismissed by the same Court of Appeal on 28 February 2012, N.I. had argued that it had learned of that judgment on 4 March 2011 (see paragraph 7 above). The Court also notes that the judgment of the Bălţi Court of Appeal of 16 May 2013 was adopted by a panel of judges which was different from that which had conducted the hearings in the proceedings (see paragraphs 14 and 15 above). 35. The Court further notes that, by allowing the appeal lodged by N.I., the Bălţi Court of Appeal set at naught an entire judicial process which had ended in a final and enforceable judicial decision and the matter was thus res judicata. Thus, it 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). 36. The Court finally notes that the ruling by the Supreme Court of Justice of 6 March 2014 did not provide full relief for the applicant because he has never been able to recover what he had lost as a result of the decisions of the Bălţi Court of Appeal of 16 May and 2 July 2013 which had been abuses. In such circumstances, the Court considers that the applicant continues to be a victim of those abuses. 37. There has thus been a violation of Article 6 § 1 of the Convention. 38. The applicant complained that the Bălţi Court of Appeal’s judgments of 16 May and 2 July 2013 had had the effect of infringing his right to peaceful enjoyment of his 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 ...”
39. The Government submitted that the application was inadmissible for the applicant’s failure to exhaust domestic remedies. In any event, the fact that the applicant had not been able to recover his goods to date had to be a matter for the domestic courts within the framework of a new set of proceedings concerning the non-enforcement of the judgment of 22 May 2006, which the applicant could initiate against the State. 40. The applicant submitted that the abusive quashing of the judgment of 22 May 2006 had breached his right to the peaceful enjoyment of his possessions worth some MDL 1,095,725. 41. For the reasons mentioned in paragraphs 30-32 above the Court considers that this complaint is not inadmissible within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible. 42. 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 cannot be appealed against 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 (ibid., § 75-80). 43. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. 44. 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.”
45. The applicant claimed in the first place the market value of the goods which had left his possession after the quashing of the judgment of 22 May 2006. According to a valuation report prepared by an expert in July 2019, the goods in question were valued at EUR 42,314. 46. The applicant further claimed interest for the above amount calculated in accordance with the provisions of the Enforcement Code and the Civil Code for the period between July 2013 and July 2019 in the amount of EUR 34,844.63. 47. He lastly claimed EUR 18,321.96 for losses caused by inflation for the period July 2013-July 2019. 48. The total amount of the applicant’s claim in respect of pecuniary damage was EUR 95,480.59. 49. The Government asked the Court to dismiss the applicant’s claims in respect of pecuniary damage. 50. The Court reiterates that a judgment in which it finds a breach imposes a legal obligation on the respondent State 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 Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI, and Former King of Greece and Others v. Greece [GC] (just satisfaction), no. 25701/94, § 72, 28 November 2002). Consequently, reparation should aim at putting the applicant in the position he would have been in had the violation not occurred, namely if the final court judgment in his favour had not been quashed (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 36, Series A no. 330‐B; Carbonara and Ventura v. Italy (just satisfaction), no. 24638/94, §§ 37-40, 11 December 2003; Scordino v. Italy (no. 3) (just satisfaction), no. 43662/98, §§ 32-37, 6 March 2007; and Dacia S.R.L. v. Moldova (just satisfaction), no. 3052/04, § 39, 24 February 2009). 51. It is clear from the case file that before the quashing the judgment of 22 May 2006 on 2 July 2013, the applicant owned property which he had obtained in lieu of a debt of MDL 1,095,725 (the equivalent of EUR 65,906) (see paragraphs 5 and 6 above). This is the situation in which the applicant would have found himself in had the breach of his rights under Article 6 and Article 1 of Protocol No. 1 to the Convention not occurred and it must be the aim of restitutio in integrum in the present case (see paragraph 50 above). Moreover, the applicant claimed that as a result of the quashing of the judgment in his favour he had been entitled to compensation for inflation and to damages calculated in accordance with the provisions of the Enforcement Code and the Civil Code. 52. Taking into account the circumstances of the case under consideration and making its own assessment, the Court awards the applicant a total amount of EUR 70,000 in respect of pecuniary damage. 53. The applicant claimed EUR 10,000 in respect of the non-pecuniary damage suffered as a result of the quashing of the final judgment favourable to him. 54. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss the claim. 55. The Court considers that the applicant must have suffered a certain amount of stress and frustration as a result of the quashing of the final judgment of 22 May 2006. It awards him EUR 2,000 for non‐pecuniary damage. 56. The applicant also claimed EUR 3,374 for the costs and expenses incurred before the Court. This amount consisted of EUR 2,100 for legal fees paid to his lawyers and EUR 1,274 paid to the expert who valued the goods lost by the applicant in July 2013. 57. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss the claim. 58. 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. 59. 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,
(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 70,000 (seventy thousand 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 3,374 (three thousand three hundred and seventy-four 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;
Done in English, and notified in writing on 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Arnfinn BårdsenDeputy RegistrarPresident