FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6267/02 
by Ion ROSCA 
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 30 November 2004 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 21 November 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ion Roşca, is a Moldovan national who was born in 1943 and lives in Chişinău. He was represented before the Court by Mrs Nina Lozan, a lawyer practising in Chişinău.

A.      The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was a shareholder in a private bank. In 1999 he had a disagreement with the bank as to the redemption of two thousand shares and consequently he brought an action against the bank, seeking compensation of 163,422 Moldovan Lei (MDL).

On 21 September 2000 the Râşcani District Court found in favour of the applicant and awarded him MDL 20,000. Both the applicant and the bank appealed against that judgment.

On 14 February 2001 the Chişinău Regional Court dismissed the applicant's appeal but upheld the bank's appeal. By its judgment it rejected the applicant's claim. The applicant lodged an appeal in cassation.

On 17 April 2001 the Court of Appeal upheld the appeal in cassation and by its judgment ordered the bank to pay the applicant MDL 102,653 (the equivalent of EUR 8,959 at the time). The judgment became final and enforceable on the same date.

In June 2001 the Prosecutor General's Office filed a request for annulment of the judgment of the Court of Appeal of 17 April 2001, and asked the Supreme Court of Justice to uphold the judgment of the Chişinău Regional Court of 14 February 2001.

On 11 July 2001 the Supreme Court of Justice upheld the Prosecutor General's request for annulment and quashed the final judgment of the Court of Appeal of 17 April 2001. The judgment of the Chişinău Regional Court of 14 February 2001 became final.

B.  Relevant domestic law

The following are relevant extracts from the Code of Civil Procedure of 1964 abrogated on 12 June 2003.

According to Article 332 the Prosecutor General and his deputies upon request from a party to the proceedings could file a request for annulment with the Supreme Court of Justice against any final decision of the domestic courts.

Article 333 stipulated the cases when a request for annulment could be filed against a final judgment. These cases were:

- when the final judgment lacked a legal basis or had been delivered in breach of the law or the law was wrongly applied;

- when the issuing court had exceeded its jurisdiction;

- when offences had been committed by judges in connection with the final decision.

Article 334 provided that there was no time limit for filing a request for annulment.

According to Article 335 the request for annulment had to be made in written form and had to contain the reasons provided in Article 333. The request for annulment had to be filed in as many copies as there were participants in the proceedings. The Prosecutor General or his deputies could withdraw the request for annulment at any time before the closure of pleadings in the case by prior notice stating the reasons for the withdrawal. In this case, the parties to the proceedings could require the continuation of the trial.

Article 335/1 stated that the proceedings related to the request for annulment should be governed by the rules set forth in Chapter 35 of the Code of Civil Procedure and that the presence of the Prosecutor General was compulsory.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention that his right to a fair trial was violated.

2.  He also claims that his right, as guaranteed by Article 1 of Protocol 1 to the Convention, to the peaceful enjoyment of possessions was breached by the State and in particular, by the judgment of the Supreme Court of Justice.

THE LAW

A.  The Government's preliminary objection as to the alleged abuse of the right of petition

In their correspondence with the Registrar the Government raise a preliminary objection that the applicant has abused the right of petition, within the meaning of Article 35 § 3 of the Convention. They have sent the Court an expert report dated September 2004 which established that the phrase “plus 10-20%” from a document submitted by the applicant to the first instance court in the year 2000 was written later than the rest of the text. In conclusion, the Government argue that the applicant forged that document and ask the Court to declare his application inadmissible for abuse.

In reply, the applicant has sent the report of another expert, which confirmed that the phrase “plus 10-20%” was written later than the rest of the document. However, it established that it was impossible to tell when exactly that phrase was added. The expert concluded that it might have been added to the document even a few hours later. Relying on the above, the applicant claims that the fact that a few words have been written later than the rest of the document does not prove by itself that the document was forged. He states that the Moldovan legislation does not forbid making amendments or corrections even in official documents.

The Court notes that the dispute between the parties is not of any relevance to the present case. The main issue of this case is the quashing of a final judgment following a request for annulment by the Prosecutor General and not the merits of the case decided by the domestic courts. It follows that the preliminary objection must be dismissed.

B.  Admissibility of the complaints

1.  The applicant complains under Article 6 § 1 of the Convention about the fairness of the proceedings. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government argued that the judgment of the Supreme Court of Justice was lawful in all the circumstances, whereas the applicant contended that it was not.

The Court refers to its case-law to the effect that one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 62, 28 October 1999).

It considers that the present application raises serious questions of fact and law under Article 6 § 1 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant complains that his right to the peaceful enjoyment of his possessions was violated as a result of the Supreme Court of Justice's judgment which upheld the request for annulment. He invokes 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.”

The Government did not expressly address the issue under Article 1 of Protocol 1 to the Convention in the light of the Brumărescu case-law, although they maintained that the judgment of the Supreme Court of Justice did not violate the applicant's right under the Convention. The applicant disagreed with the Government but did not address the Brumărescu type problem raised by the Court.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Michael O'Boyle Nicolas Bratza 
 Registrar President

ROSCA v. MOLDOVA DECISION


ROSCA v. MOLDOVA DECISION