AS TO THE ADMISSIBILITY OF
Application no. 36475/02
by Petru LUPASCU
The European Court of Human Rights (Fourth Section), sitting on 14 December 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 21 August 2002,
Having deliberated, decides as follows:
The applicant, Mr Petru Lupascu, is a Moldovan national who was born in 1957 and lives in Chisinau. The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was charged with fraud in February 1997. During the subsequent criminal investigation, his home was searched and certain family assets were seized by order of the court. He was also prohibited from leaving the city. Since his job required frequent travel abroad, he was dismissed. In 1999 he was acquitted, an acquittal upheld on appeal.
Given his acquittal, the applicant initiated an action for damages for which domestic law provided. On 10 September 2001 the Rîşcani District Court accepted his claims in part and awarded him 200,000 Moldovan lei (MDL) in compensation (pecuniary and non-pecuniary loss) and MDL 8000 (the equivalent of EUR 674 at the time) in legal costs. On 18 December 2001 the Chişinău Regional Court partly set aside that judgment: it awarded him MDL 100,000 (the equivalent of EUR 8,420 at the time) in compensation (non-pecuniary loss only) and it upheld the legal costs award (MDL 8000). On 21 March 2002 the Court of Appeal upheld the Regional Court's judgment. An enforcement warrant was submitted to the bailiff, who did not enforce it.
On 23 July 2002 the Prosecutor General filed a request for the annulment of the judgment of 21 March 2002, a request upheld on 25 September 2002 by the Supreme Court of Justice. That court adopted a new judgment awarding him MDL 3000 (the equivalent of EUR 226 at the time) in compensation for non-pecuniary damage and upholding the legal costs award (MDL 8000). That judgment was enforced in November 2002.
1. The applicant complains under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention about the failure to enforce the judgment of 21 March 2002. He also invokes Article 13 in conjunction with Article 6 § 1 of the Convention.
2. He also complains under Article 6 § 1 (in a letter to this Court of 5 February 2004) about the annulment of a final judgment in his favour.
3. He further complains about certain measures taken against him during the criminal investigation (notably the search of his home, the seizure of certain family assets and the prohibition on leaving the city) and invokes Articles 3, 5 § 1 and 8 § 1 of the Convention as well as Article 3 of Protocol 7 and Article 2 of Protocol 4 to the Convention.
1. The applicant complains about the failure to enforce a final court judgment (of 21 March 2002) in his favour. He invokes Article 6 § 1 (alone and in connjuction with Article 13) together with Article 1 of Protocol 1 to the Convention. The relevant Articles provide, in so far as relevant, as follows:
Article 6 § 1:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time.”
“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.”
Article 1 of Protocol 1:
“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 Court observes that the applicant does not indicate when the enforcement warrant was submitted to the bailiff, this being a necessary preliminary step to the enforcement of a judgment. Thereafter the relevant judgment was the subject of an annulment request by the Prosecutor General on 23 July 2002, which request was granted two months later on 25 September 2002. Accordingly, even if the judgment could have been enforced after the Prosecutor General's request, the period for which it remained unenforced was, in the Court's view, relatively short. There being, in addition, no factors in the present case which could be considered to have required special diligence and speedier enforcement, the Court finds that the complaints do not disclose any appearance of a violation of the rights and freedoms set out under Article 6 and under Article 1 of Protocol No. 1 (see, for example, Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004). As to Article 13, Article 6 constitutes the lex specialis in respect of the procedural guarantees attaching to civil proceedings (E.H. v. Finland (dec.), no. 60966/00, 16 March 2004).
This part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complains under Article 6 § 1 about the annulment of a final judgment in his favour pursuant to a request made by the Prosecutor General.
The Court recalls that “the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a re-opening of the proceedings” (Frunze v. Moldova, no. 42308/02, 5 October 2004). The quashing of the final judgment in this case took place on 25 September 2002 and the six-month period runs from that date. While this application was introduced on 21 August 2002, the applicant only made this complaint in his letter of 5 February 2004, more than 16 months after the impugned quashing.
Consequently, the complaint was introduced outside the time-limit laid down in Article 35 § 1 of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention.
3. The Court has examined the remainder of the applicant's complaints under these Articles. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously by a majority
Declares the application inadmissible.
Michael O'Boyle Nicolas Bratza
LUPASCU v. MOLDOVA DECISION
LUPASCU v. MOLDOVA DECISION