Last Updated on April 27, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 10661/08
KOMMERSANT MOLDOVY
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 19 March 2019 as a Committee composed of:
Ivana Jelić, President,
Valeriu Griţco,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 January 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, KommersantMoldovy, was a newspaper registered in Moldova. It was represented before the Court by Mr V. Nagacevschi, a lawyer practising in Chișinău.
2. The Moldovan Government (“the Government”) were represented by their Agent at the relevant time, Mr L. Apostol.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. By a final decision given by the Supreme Court of Justice on 29 May 2002 the applicant newspaper was found to have breached the territorial integrity and national security of Moldova and was ordered to close as a result.
5. On 9 January 2007 the Court adopted its judgment in respect of the application lodged by the applicant newspaper. The Court found a violation of Article 10 of the Convention and awarded the applicant newspaper compensation for the damage caused to it (see, for more details, KommersantMoldovy v. Moldova, no. 41827/02, 9 January 2007). The judgment became final on 9 April 2007 (the principal judgment).
6. On 29 May 2007 the applicant newspaper lodged with the Supreme Court of Justice a request for the reopening of the proceedings which had ended with the judgment of 29 May 2002. The request was based on Article 449 (h) of the Code of Civil Procedure (see below) and referred to the Court’s judgment of 9 January 2007 as the ground for the reopening.
7. According to the applicant newspaper, the parties did not raise the issue of late submission of the request for the reopening of the proceedings and it was not discussed during the hearing.
8. On 4 October 2007 the Supreme Court of Justice rejected the applicant newspaper’s request as lodged outside the three-month time-limit established in Article 450 (g) (see paragraph 9 below).
B. Relevant domestic law and practice
9. The relevant provisions of the Code of Civil Procedure read as follows at the relevant time:
Article 449. Grounds for revision
“Revision may be requested:
… h) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court.”
Article 450. Time-limits for lodging a revision request; their calculation
“A revision request may be lodged:
…
g) within three months from the date of the adoption of the judgment of the European Court for Human Rights – for the ground under Article 449 (h).”
Article 452. Examination of a revision request
“(1) The court shall examine the revision request in a public session in accordance with the rules of examining a court action.
(2) The debates shall be limited to the admissibility of the revision and to the facts on which it is based.
…”
Article 453. Powers of the revision court and decisions taken
“(1) After examining the revision request, the court shall adopt one of the following decisions (acte de dispoziție):
(a) decision of rejecting the request for revision as inadmissible;
(b) decision of accepting the request for revision and of quashing of the judgment or decision subjected to revision.
(3) The decision to reject the revision request can be appealed in cassation to the higher court, except when the revision request was examined by the Supreme Court of Justice.
…
(6) If a judgment previously examined on appeal and appeal on points of law has been subjected to revision, the case shall be sent, after accepting the revision request, for re-examination on appeal, on appeal on points of law or in first instance, as necessary.
(7) Following the examination of the case after accepting a revision request, the court shall adopt a judgment, which can be subject to the means of appeal established by law for the type of judgment subjected to revision.”
10. The applicant newspaper submitted a copy of a judgment adopted by the Supreme Court of Justice on 29 November 2006, in which a request for the reopening of the proceedings following the finding of a violation of Convention rights established by the Court was accepted (the case concerned was Christian Democratic People’s Party v. Moldova, no. 28793/02, ECHR 2006‑II). One of the arguments of the defendant was that the applicant had lodged the request more than three months after the adoption of the judgment by the Court and thus outside the three-month time-limit established in Article 450 (g) of the Code of Civil Procedure. The applicants in that case submitted that their request had been made within three months from the date on which the Court’s judgment had become final. The Supreme Court of Justice found, in this respect, that:
“… the judgment of the European Court of Human Rights became final only on 15 May 2006. Therefore, [the Christian Democratic People’s Party] submitted its request within the time-limit.”
11. According to the applicant newspaper, no request for the reopening of the proceedings following a finding of a violation by the Court has been accepted by the Supreme Court of Justice before the entry into force of the relevant Court’s judgment as that court always waited to see whether the Court’s judgment became final.
COMPLAINTS
12. The applicant newspaper complained under Article 10 of the Convention about the failure of the Supreme Court of Justice to reopen the proceedings following the finding of a breach of by the Court.
13. It also complained of a breach of Article 6 § 1 of the Convention about the domestic court’s refusal to examine the request for the reopening of the proceedings as being late.
14. It finally complained under Article 46 about the failure to properly execute the Court’s judgment of 9 January 2007.
THE LAW
15. The applicant newspaper complained that the domestic courts had refused to reconsider the decisions ordering its closure, despite the Court’s finding that they had been taken in violation of the applicant newspaper’s right to freedom of expression guaranteed by Article 10 of the Convention. It referred to Articles 10 and 6 § 1 of the Convention. These Articles provide as follows:
Article 10 (Freedom of expression)
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 6 (Right to a fair trial)
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 46
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Commit-tee.
4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”
A. The parties’ submissions
1. The Government
16. The Government argued that the case fell outside the Court’s jurisdiction rationemateriae since no new breach of Article 10 in respect of the applicant newspaper’s right had taken place. The mere fact that the applicant newspaper had failed to abide by clear statutory time-limits did not amount to a fresh violation of the Convention.
17. The original judgment did not specify that in order to execute it a reopening of the domestic proceedings was required. Moreover, it had noted that the applicant newspaper had essentially continued its activity under a slightly different name. Thus, had the Supreme Court of Justice annulled the previously adopted domestic judgments in respect of the applicant newspaper, this would only have had a declaratory character since the situation would not have materially changed.
2. The applicant newspaper
18. The applicant newspaper argued that the failure to annul the previously adopted judgments meant that those judgments continued to be in force and continued to breach its rights under Article 10. It submitted that its complaint concerned new facts not examined in the Court’s original judgment of 9 January 2007: it concerned a different period of time and a judgment adopted after the adoption of the original judgment (4 October 2007, see paragraph 8 above). Moreover, the substance of the complaint was also different.
19. The applicant newspaper considered that by rejecting its request the Supreme Court of Justice exceeded the parties’ submissions since none of the participants had asked for declaring the request as late. Moreover, it had failed to ask the parties about their position in respect of this issue and to listen to their arguments in that respect. The principle of equality of arms had thus been breached in these new proceedings.
20. It was for the State found to be in breach of the Convention to choose the manner of implementing measures necessary for remedying the victim’s rights. The Moldovan legislator put at the victim’s disposal the right to request the reopening of the proceedings whenever the Court found a breach of the Convention (see paragraph 9 above). However, the Supreme Court of Justice refused to accept its request for being late, despite its own previous case-law in which it had expressly rejected a similar argument.
B. The Court’s assessment
21. The Court refers to its case-law concerning the execution of the Court’s judgments and the Court’s competence to examine a new issue undecided by the previous judgment (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 33 and 34, ECHR 2015, Egmez v. Cyprus ((dec.), no. 12214/07, §§ 48-56, 18 September 2012, and Kudeshkina v. Russia (dec.), 28727/11, §§ 52-68, 17 February 2015).
a) Complaint under Articles 10 and 46 of the Convention
22. The Court considers that the applicant newspaper’s complaint under Article 10 essentially mirrors that made under Article 46. It concerns an alleged lack of proper execution of the Court’s judgment of 9 January 2007 in its previous case since no new judgment has been adopted in which the domestic courts examined any freedom of expression issue. The failure to annul the previously adopted domestic court judgments could be viewed as preventing the full restitutio in integrum following the Court’s finding of a violation of Article 10 of the Convention since the applicant newspaper still cannot publish under its old name. However, complaints of a failure either to execute the Court’s judgment or to redress a violation already found by the Court fall outside the Court’s competence rationemateriae (see, for instance, Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX and Bochan (2), cited above, § 35) and are rather subject to the supervision of execution by the Committee of Ministers under Article 46 of the Convention.
23. The Court does have jurisdiction to examine complaints concerning situations where the domestic authorities have carried out a fresh domestic examination of the case by way of implementation of one of the Court’s judgments whether by reopening of the proceedings or by the initiation of an entire new set of domestic proceedings (see Bochan (2), cited above with further references). However, in the present case, when the applicant newspaper filed its request for the reopening of the proceedings, it did not seek to exercise its freedom of expression, but rather to remove the consequences of the violation previously found (see, for instance, Costică Moldovan and Others v. Romania (dec.), no. 8229/04 and other applications, 15 February 2011and Kudeshkina, cited above, § 86). The situation would have been different had the Supreme Court of Justice accepted the revision request and examined the merits of the case against the applicant newspaper or had the latter applied for a re-registration under its old name and been refused on the basis of the existence of the judgment of 29 May 2002 (see paragraph 4 above) or based on new reasons.
24. Accordingly, the applicant newspaper’s complaints, in so far as they concern the failure to remedy the original violation of Articles 10 and 46 of the Convention as found in the Court’s judgment of 9 January 2007, must be declared incompatible rationemateriaewith the Convention pursuant to Article 35 §§ 3 (a) and 4.
b) Complaint under Article 6 § 1 of the Convention
25. The applicant newspaper complained under Article 6 § 1 of the Convention that the manner in which the Supreme Court of Justice examined its request for revision of the final judgment adopted earlier was in breach of the principle of equality of arms and departed from that court’s previous case-law on the matter of interpreting the time-limit for submitting a revision request.
26. This new grievance is thus about the manner in which the decision of 4 October 2007 had been reached in the proceedings concerning the applicant newspaper’s revision request, not about either their outcome as such or the effectiveness of the national courts’ implementation of the Court’s judgment. Although the applicant newspaper’s request to have the domestic decisions adopted previously reconsidered were undoubtedly connected with the execution of the Court’s judgment of 9 January 2007, its complaints about the unfairness of the subsequent judicial proceedings both concern a situation distinct from that examined in that judgment and contain relevant new information relating to issues undecided by that judgment.
27. As a consequence, in the present case the “new issue” the Court is competent to examine, without encroaching on the prerogatives of the respondent State and the Committee of Ministers under Article 46 of the Convention, concerns the alleged unfairness of the proceedings in the applicant newspaper’s request for revision, as opposed to their outcome as such and their impact on the proper execution of the Court’s judgment of 9 January 2007 (see Bochan (2), cited above, § 38).
28. However, before examining the merits of this new complaint the Court needs to verify whether it has jurisdiction rationemateriae to examine this new complaint, this time not from the point of view of the application of Article 46 of the Convention but from that of the applicability of Article 6 § 1 to the type of proceedings under consideration.
29. In this respect, the Court reiterates that according to long standing and established case-law, the Convention does not guarantee a right to have a terminated case reopened. Extraordinary appeals seeking the reopening of terminated judicial proceedings do not normally involve the determination of “civil rights and obligations” or of “any criminal charge” and therefore Article 6 is deemed inapplicable to them. This is because, in so far as the matter is covered by the principle ofres iudicataof a final judgment in national proceedings, it cannot in principle be maintained that a subsequent extraordinary application or appeal seeking revision of that judgment gives rise to an arguable claim as to the existence of a right recognised under national law or that the outcome of the proceedings in which it is decided whether or not to reconsider the same case is decisive for the “determination of … civil rights or obligations or of any criminal charge” (see Bochan (2), cited above, § 44). This approach has been followed also in cases where reopening of terminated domestic judicial proceedings has been sought on the ground of a finding by the Court of a violation of the Convention (see, for instance, Fischer v. Austria(dec.), no. 27569/02, ECHR 2003 VI and Bochan (2), cited above, § 45). As an exception, the Court has accepted that Article 6 § 1 applied to the reopening proceedings where the law treated them as an extension of the original proceedings and where the domestic courts’ analysis extended to the merits of the case (see Bochan (2), cited above, §§ 51-56).
30. Turning to the circumstances of the present case, it is noted that Moldovan law provided for the right to request the reopening of a final court judgment following the Court’s finding of a violation of a Convention right. While the proceedings in such a case were to follow the rules for examining any court action, their subject-matter was expressly limited to the admissibility of the request of revision (see Article 452 (2) of the Code on Civil Procedure (“CCP”), cited in paragraph 9 above). This was further reflected in the extent of the powers of the court examining the revision request under Article 453 (1) CCP, which were limited to either rejecting such a request or accepting it and quashing the relevant judgment. Only after accepting a revision request could the court send the case for re-examination to the competent court (see paragraph 9 above). It follows that, unlike in Bochan (2) cited above (§§ 51-56), the Moldovan law did not treat the revision proceedings as being a type of appeal or an extension of the original proceedings, but expressly limited their scope to verifying the grounds for reopening a case and to adopting of a separate decision accepting or rejecting a revision request.
31. In Bochan (2) the Court further examined the scope and nature of the “examination” actually carried out by the Ukrainian Supreme Court in that particular case and found that it had reviewed the case materials and the court decisions from the original proceedings in the light of the applicant’s new submissions based mainly on the Court’s judgment. By contrast, in the present case, the Supreme Court of Justice did not examine any issue other than compliance of the applicant newspaper’s revision request with the formal legal requirements concerning the observance of the time-limits for lodging such requests. It cannot thus be said that the Supreme Court of Justice reviewed to any extent the merits of the original court action against the applicant newspaper.
32. Accordingly, in accordance with its case-law mentioned in paragraph 29 above, the applicant newspaper’s complaints under Article 6 § 1 of the Convention, concerning the fairness of the proceedings before the Supreme Court of Justice leading to the adoption of the decision of 4 October 2007, must be declared inadmissible as being incompatibleratione materiaewith the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 April 2019.
Hasan Bakırcı Ivana Jelić
DeputyRegistrar President
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