Last Updated on March 1, 2022 by LawEuro
SECOND SECTION
CASE OF AXENTII v. THE REPUBLIC OF MOLDOVA
(Application no. 42582/13)
JUDGMENT
STRASBOURG
1 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Axentii v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Gilberto Felici, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 42582/13) 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”) on 16 May 2013 by a Moldovan national, Ms Aurica Axentii, born in and living in Chișinău (“the applicant”) ;
the decision to give notice of the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr M. Gurin and later by their Agent Mr O. Rotari, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 1 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The present case concerns the quashing of two final court judgments in the applicant’s favour by admitting revision requests lodged outside the legal time-limit.
2. In 2009 the applicant obtained a final court judgment which obliged a third party D. to pay her 88,000 euros (EUR). To enforce this judgment debt the applicant sought the sale of D.’s mortgaged real estate. On 13 May 2011 the Călărași District Court acknowledged the applicant’s possession of the mortgaged assets. The judgment became final by non‑appeal on 30 May 2011. Based on this judgment, on 5 July 2011 the Călărași District Court validated the sale of the mortgaged assets to V. for EUR 80,000. The judgment became final and enforced by registration in the public land registry on 3 August 2011. However, on 4 April 2013 and on 22 May 2013, respectively, the Chișinău Court of Appeal quashed the 2011 judgments in the applicant’s favour by upholding revision requests lodged by A. outside the legal time-limit and ordered a rehearing of the case. On 4 February 2015 the Supreme Court of Justice finally rejected the applicant’s claims in full and obliged her to repay V. the EUR 80,000 received for the sale of the mortgaged assets.
3. The applicant complained of a violation of her rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
4. Following the communication of the case, on 22 February 2017 the Supreme Court of Justice upheld the request of the Government Agent to reopen domestic proceedings and acknowledged the violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention in respect of the applicant on the account of the irregular quashing of the judgments in her favour after time-barred revision requests had been upheld. The court reheard the case, rejected the time-barred revision requests and finally upheld the judgments from 13 May and 5 July 011 in the applicant’s favour. The court ordered the Government Agent to settle the claims for just satisfaction.
5. The applicant sought the enforcement of the Supreme Court of Justice judgment from 22 February 2017 and, in particular, to register V. as the owner of the sold mortgaged real estate. However, the Land Registry informed her that in the meantime A. had registered ownership of the real estate and had sold it to C. The applicant attempted to cancel C.’s ownership based on the judgment of the Supreme Court of Justice form 22 February 2017 but to no avail; the domestic courts informed her that C. had not been a party to those proceedings and that any dispute about their property rights should be the object of a new set of proceedings.
THE COURT’S ASSESSMENT
THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
6. On 9 January 2018 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003‑VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Government also offered to pay the applicant EUR 1,350 (one thousand three hundred fifty euros) to cover any and all pecuniary and non‑pecuniary damage, as well as costs and expenses. They argued that this amount would constitute sufficient just satisfaction. The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.
7. The applicant disagreed with the Government’s proposal and argued that her situation had not been redressed as she was unable to obtain the effective restitutio in integrum and that the proposed amount was insufficient to cover pecuniary damage.
8. The Court reiterates the principle set out in Nagmetov v. Russia ([GC], no. 35589/08, § 65, 30 March 2017) according to which a judgment in which it finds a breach imposes on the respondent State a legal obligation 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. The Court is of the opinion that this principle is also applicable in cases such as the present one, where a Government seek to obtain a strike-out decision by means of a unilateral declaration (Decev v. Moldova (no. 2), no. 7365/05, § 18, 24 February 2009).
9. In the light of the circumstances of the case (see paragraphs 2 and 5), the Court is not convinced that the reparation proposed by the Government would “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”. In particular, the Court notes that in admitting that there has been a violation of Article 6 § 1 of the Convention, the Government have not proposed sufficient compensation for the damage incurred by the applicant.
10. For the reasons set out above, the Court finds that the Government have failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see, by contrast, Akman v. Turkey (striking out), no. 37453/97, §§ 23-24, ECHR 2001‑VI).
11. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION and of article 1 of protocol no. 1 to the convention
12. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
13. The general principles concerning the irregular quashing of final court judgments have been summarised in Popov v. Moldova (no. 2) (no. 19960/04, §§ 27-29, 6 December 2005), Melnic v. Moldova (no. 6923/03, §§ 38-44, 14 November 2006) and Istrate v. Moldova (no. 53773/00, §§ 46-61, 13 June 2006).
14. The Supreme Court of Justice acknowledged the breach of the applicant’s rights due to the irregular quashing of the judgments in her favour. The Court sees no reason to disagree with that finding. Nevertheless, after making that finding, the Supreme Court of Justice did not award the applicant any compensation, no subsequent arrangement for a compensation had been reached by the Government and the applicant had been unable to reinstate her rights.
15. In the light of the above case-law and in view of the Government’s clear acknowledgement of a breach, the Court concludes that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No.1 to the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. In her submissions from 6 March 2018, the applicant claimed EUR 131,988.28 in respect of pecuniary damage, including among others the sale price of the mortgaged assets (EUR 80,000), default interest (EUR 17,139.73), court fees before domestic courts (17,500 Moldovan lei, equivalent to EUR 848,55). The applicant submitted a handwritten note by V., which confirmed that she had received from the applicant EUR 80,000, and the calculation of the default interest according to Article 619 of the Moldovan Civil Code. The applicant did not submit any proof of payment of court fees.
17. The applicant claimed EUR 15,000 in respect of non-pecuniary damage and EUR 3,500 in respect of costs and expenses for her own work on self-representation before the Court. She did not submit any details concerning the amount of time spent on self-representation. She also submitted claims for the compensation of damage incurred by V.
18. The Government submitted that the applicant’s claims were excessive.
19. The Court notes that as the result of the irregular quashing of the judgments in the applicant’s favour, the sale of the mortgaged assets had been rescinded and the applicant had returned the sale price of EUR 80,000 to the buyer V. Since then, the mortgaged assets had been sold to C. which were not party to the initial proceedings. For this reason, although the judgments in the applicant’s favour have been reinstated, she was unable to establish possession of the mortgaged assets, to reinstate the sale deed with V. and obtain back from V. the sale price of EUR 80,000 (see paragraph 5). Therefore, the restitutio in integrum concerns the sale price of the mortgaged assets and related default interest. For this reason, the Court awards the applicant EUR 97,100 in respect of pecuniary damage, plus any tax that may be chargeable to the applicant.
20. In respect of non-pecuniary damage, the Court awards the applicant EUR 2,000.
21. The Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents, failing which the Court may reject the claim in whole or in part. The applicant failed to submit any documents in support of her claim for costs and expenses, such as an itemised list of the hours spend on self-representation or receipts for the payment of court fees. Therefore, the Court makes no award in respect of costs and expenses.
22. As V. is not an applicant in the present case, the Court is not called to make any award in her respect.
23. The Court further 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. Rejects the Government’s requests to strike the application out of the list of cases;
2. Declares the complaints concerning Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible;
3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention;
4. Holds
that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:
(i) EUR 97,100 (ninety seven thousand one 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;
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 1 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Egidijus Kūris
Deputy Registrar President
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