CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 juin 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s294F11C8 { width:3.2pt; display:inline-block } .s46C79669 { width:202.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       SECOND SECTION             CASE OF BODIU v. THE REPUBLIC OF MOLDOVA   (Application no. 7516/10)                   JUDGMENT     STRASBOURG   18 June 2019           This judgment is final but it may be subject to editorial revision.   In the case of Bodiu v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Egidijus Kūris, President,   Valeriu Griţco,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 28 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 7516/10) 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 Aurel Bodiu (“the   applicant”), on 29 January 2010. 2.     The applicant was represented by Mr R. Zadoinov and Ms Violeta Gaşiţoi, lawyers practising in Chişinău. The Moldovan Government (“the   Government”) were represented by their Agent at the time, Mr   L.   Apostol. 3.     The applicant alleged, in particular, that his rights guaranteed under Article   6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention had been breached as a result of the wrongful quashing of a final judicial decision issued in his favour. 4.     On 30 September 2014 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1975 and lives in Chişinău. 6.     The applicant had a dispute with H. over ownership of a house. He brought a claim against H. seeking acknowledgement of his property rights, as his father’s heir, and H.’s eviction from the house. H. lodged a counterclaim, seeking acknowledgement of her property rights to the house as she had built it. 7.     On 20 December 2007 the Buiucani District Court dismissed H.’s counterclaim and allowed the applicant’s claim in full. H. lodged an appeal. On 20   May 2008 the Chișinău Court of Appeal upheld the earlier judgment and dismissed H.’s appeal. H. did not attend the appellate hearing, even though the summons had been repeatedly sent to the address she had provided in her appeal. A registered letter was returned with a note stating that H. did not live at the address indicated by her. The judgment became final after the expiry of the two-month time-limit for lodging an appeal on points of law. 8.     On 11 May 2009 H. lodged an appeal on points of law with the Supreme Court of Justice, stating that she had only learned of the judgment of 20   May 2008 on 23 April 2009. In her application, she indicated the same address as in the proceedings before the Court of Appeal. The applicant asked the Supreme Court of Justice to dismiss the appeal as being lodged outside the legal time-limit. He submitted that since it had been H. who had lodged the appeal with the Chişinău Court of Appeal, it had been her duty to enquire about the progress of the proceedings and not to wait for a year before doing so. 9.     On 16 October 2009 the Supreme Court of Justice allowed H.’s appeal on points of law, quashed the previous judgments and delivered a new judgment on the merits of the case dividing the disputed house into equal shares between the applicant and H. The court argued that the appeal had not been lodged outside the time-limit because H. had not attended the hearing before the Court of Appeal and there was nothing in the file to suggest that that court had informed her of the availability of the full judgment. The court concluded that without any evidence of the date when H. had learned of the judgment, her appeal was considered to have been submitted on time. The judgment was final. II.     RELEVANT DOMESTIC LAW AND PRACTICE 10.     Under Article 107 of the Code of Civil Procedure, as worded at the time of the events, parties to proceedings had to inform the court of any change of address. 11.     Under Article 433 of the Code of Civil Procedure, as worded at the time of the events, an appeal on points of law would be considered inadmissible if lodged outside the legal time-limit. 12.     Under Article 434 of the Code of Civil Procedure, as worded at the time of the events, an appeal on points of law could be lodged within two months of delivery of the appellate judgment and, if the full judgment was provided at a later date, from the date when the parties were informed in writing of signature of the full judgment. The two-month time-limit was limited and could not be extended. 13.     According to the practice of the Supreme Court of Justice, an applicant is expected to act with due diligence and in good faith and to enquire about the progress of the proceedings in 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 idleness and lack of diligence in support of a request to extend a time-limit to lodge an appeal on points of law outside the legal time-limit. The above principles were stated 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 I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.     The applicant complained that the Supreme Court of Justice’s decision to quash the judgments of the lower courts in his favour, following an appeal on points of law lodged by the adverse party out 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. ...” A.     Admissibility 15.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 16.     The applicant argued that the judgment of the Chişinău Court of Appeal on 20 May 2008 had become final because the adverse party had not lodged an appeal on points of law within the legal time-limit of two months. The appeal on points of law lodged by H. in May 2009 had been lodged out of time. Therefore, the Supreme Court of Justice’s decision to allow that appeal had amounted to a breach of Article 6 § 1 of the Convention. 17.     The Government submitted that H. had not been present at the Court of Appeal’s hearing of 20 May 2008 when the impugned judgment had been delivered. She had only learned of that judgment on 23   April 2011. She had lodged the appeal some two weeks later, that is, within two months of the date when she had learned of the judgment. The appeal on points of law had therefore been lodged within the statutory time-limit. 18.     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). 19.     In Carpov v. the Republic of Moldova (no. 6338/11, 12 February 2019), the Court found that the upholding of a late appeal by the Chişinău Court of Appeal had been in breach of the principle of legal certainty. The Court held that the “losing” by a litigant of a final favourable judgment was incompatible with the Convention. 20.     In the present case, the applicant also “lost” a judgment in his favour. The dispute between the parties is whether the appeal on points of law dated 11   May 2009 was lodged within the legal time-limit specified under Article 434 of the Code of Civil Procedure (see paragraph 12 above). 21.     The Court notes that the legal systems of many member States provide for the possibility to extend procedural time-limits if there are valid reasons to do so. At the same time, if the time-limit for an ordinary appeal procedure is extended after a considerable lapse of time and for reasons which do not appear to be particularly persuasive, such a decision can infringe the principle of legal certainty. The Court acknowledges that it is primarily within the domestic courts’ discretion to decide on the extension of the time-limit for an appeal, but that discretion is not unlimited. The courts are required to indicate reasons. One of those reasons could be, for instance, a failure by the State authorities to inform parties of decisions taken with respect to their cases. Even then, however, the possibility of an extension would not be unlimited, since the parties should take steps within reasonable intervals to enquire about the progress of judicial proceedings of which they are aware. In every case, the domestic courts should verify whether the reasons for extending a time-limit for appeal could justify the interference with the principle of res judicata , especially where the domestic legislation does not limit the courts’ discretion either as regards the time or grounds for an extension of the time-limit (see Ponomaryov v.   Ukraine , no. 3236/03, §§   41, 3 April 2008). 22.     The Court notes that in her appeal on points of law H. did not explain what had prevented her from finding out about the decision of the Court of Appeal earlier, or mention whether she had attempted to enquire about the progress of the appeal proceedings initiated by her. In spite of that, the Supreme Court of Justice agreed to calculate the two-month time ‑ limit from the date indicated by H. without any reservations. In so doing, it did not apply its case-law concerning the parties’ obligation to act with due diligence and in good faith (see paragraph 13 above). H. was not asked why she had not informed the Court of Appeal of the change of her address or whether she had made any attempts to enquire about the appeal proceedings instituted by her. 23.     In such circumstances, the Court considers that allowing H. to lodge an appeal on points of law after a considerable lapse of time and in the absence of any plausible explanation as to why she could not lodge it earlier, set at naught an entire judicial process which had ended in a final and enforceable judicial decision and thus res judicata . The Supreme Court of Justice thus 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 , cited above, §§ 61 and 62). 24.     There has thus been a violation of Article 6 § 1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 25.     The applicant complained that the quashing of the decision of the Court of Appeal of 20   May 2009 had had the effect of infringing his right to peaceful enjoyment of his possessions as secured by 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.” A.     Admissibility 26.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 27.     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 unappealable 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). 28.     It follows that there has been a violation of Article 1 of Protocol No.   1 to the Convention. III.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 29.     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.” A.     Damage 30.     The applicant claimed 650 euros (EUR) in respect of pecuniary damage, without giving any details. He also claimed EUR 4,000 in respect of non-pecuniary damage. 31.     The Government contested the above amounts and argued that there was no causal link between the alleged breaches and the claim for pecuniary damage. In any event, they argued that the applicant had not explained what the amount claimed in respect of pecuniary damage was supposed to cover. As to the non-pecuniary damage, the Government stated that the amount claimed was excessive. 32.     The Court notes that the applicant did not give any explanation concerning the amount claimed for pecuniary damage. Therefore it rejects this claim as unsubstantiated. However, ruling on an equitable basis, it awards him EUR 2,000 in respect of non-pecuniary damage. B.     Costs and expenses 33.     The applicant also claimed EUR 2,850 for the costs and expenses incurred before the domestic courts and the Court. 34.     The Government argued that the amount was excessive. 35.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the above criteria, the Court awards him EUR 500. C.     Default interest 36.     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, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;   4.     Holds (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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 500 (five hundred 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;   5.     Dismisses the remainder of the applicant claim for just satisfaction. Done in English, and notified in writing on 18 June 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Egidijus Kūris Deputy Registrar   President