CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 mai 2019

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text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }   Communicated on 16 May 2019   SECOND SECTION Applications nos. 40339/11 and 26159/12 Viorel ŢOPA, Victor ŢOPA and Others against the Republic of Moldova and Viorel ŢOPA, Victor ŢOPA and Vladimir MORARI against the Republic of Moldova lodged on 24 June 2011 and 18 April 2012 respectively STATEMENT OF FACTS A list of the applicants is set out in appendix 1. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. Application no. 40339/11 concerns alleged “raider attacks” on shareholdings and shareholder rights which were allegedly owned beneficially by Viorel Ţopa and Victor Ţopa. A “raider attack” refers to a host of legal, semi-legal and illegal tactics, including forgery, corruption, and intimidation, which are employed by raiders to “steal” companies from their owners. Application no. 26159/12 concerns criminal proceedings brought against Viorel Ţopa, Victor Ţopa and Vladimir Morari after they made a public statement about the first of the alleged “raider attacks”. 1.     The alleged “raider attack” in 2010 Viorel Ţopa and Victor Ţopa were business partners. Prior to May 2010 they were beneficiaries of 35.2 per cent of the share capital in Victoriabank (“the bank”), through shares either acquired by them directly or acquired by associates with their financing. The remaining applicants in application no.   40339/11 are the companies and individuals through which these shares were held. On account of their share capital, Viorel Ţopa and Victor Ţopa together enjoyed 51.7 per cent of voting rights at the bank’s Annual General Meeting (“AGM”). The third significant shareholder in the bank was Victoria Invest Ltd., a company controlled by VP. VP, one of Moldova’s richest men, is currently Chairman of the ruling Democratic Party. He was a member of the Parliament of Moldova in two terms from December 2010 to October 2013 and from December 2014 to July 2015, and served as First Deputy Speaker of the Parliament of Moldova from December 2010 to February 2013. OpenDemocracy describes him as “ the most influential person in Moldova”, a man who “controls nearly every government institution”. Viorel Ţopa and Victor Ţopa had been business partners with VP when the three men acquired their shares in the bank in 2006. At the time they agreed to maintain an equal balance of shares between them. In or around the beginning of 2010, Viorel Ţopa and Victor Ţopa entered into negotiations with VP to terminate their relationship and interest in the bank. However, at an AGM on 19 May 2010 they were informed that they were no longer registered shareholders, either in the bank or in companies holding shares in the bank. At that same meeting the new group of controlling shareholders voted to pay themselves a dividend of MDL   170,000,000 (approximately EUR 8,700,000). Following the AGM on 19 May 2010, Viorel Ţopa and Victor Ţopa discovered that five separate legal proceedings, brought by individuals and companies which had sold shares in Victoriabank to persons or companies acting on their behalf, had resulted in the rescission or declaration of invalidity of those share sale agreements. According to Viorel Ţopa and Victor Ţopa, after they were divested of the bulk of their share capital and voting rights, VP controlled a voting block of 58.3 per cent. At an extraordinary meeting of the bank’s shareholders which took place on 20 August 2010, a new supervisory board was elected. Six of its seven members, including VP, were nominated by Victoria Invest Ltd. (the company controlled by VP). (a)     The five cases Each of the five cases was heard at first instance by the District Economic Court; at second instance by the Economic Court of Appeal; and at third instance by the Economic Chamber of the Supreme Court. The administrative details of the cases are set out in appendix 2. (i)     Case 1 By way of a notarised share sale agreement dated 25 June 2003, EA had sold to OC 100 per cent of the capital shares in LR Uniune, a company which owned a considerable portion of the shares in the bank. In 2005 OC alienated twenty-five per cent of those shares to Victor Jantic, an associate of Viorel Ţopa and Victor Ţopa, and a further twenty-five per cent to AM. The other fifty per cent were sold to MA (EA’s husband) in 2006. LR   Uniune was then split into two companies – Financiar Invest SRL and Profinante SRL – with each obtaining fifty per cent of LR Uniune’s capital and assets. Fifty per cent of Financiar Invest SRL’s shares were owned by Victor Jantic. Both Financiar Invest SRL and Victor Jantic are applicants in application no. 40339/11. [1] In 2007 MA sold his shares in Profinante SRL to the husband of VP’s secretary. EA and her husband, MA, subsequently sought the nullity of the sale agreement of 25 June 2003. They contended that it was void because the share capital was part of their joint and indivisible property at the date of transfer and MA did not consent to the alienation of his share. They further contended that the price indicated in the contract of sale was false and had not been paid. Finally, they argued that the legal acts subsequent to the conclusion of the contract of sale should be annulled. Both Financiar Invest SRL and Profinante SRL were named as defendants to the action. Profinante SRL was represented by its Director at the hearing and contested the plaintiff’s claim. Financiar Invest SRL did not appear and was not represented. The court stated that the company had been “legally summonsed”, that the summonses were sent to the addresses indicated in the contested acts, and that no representative of the company had appeared at the post office to receive the summons. The District Economic Court found that the right of MA to his joint and indivisible property had been violated as there were no documents showing his consent to or his awareness of the sale of the shares by EA. OC had been obliged to ask about his consent and her failure to act with due diligence conflicted with the presumption of good faith. The court also considered that the price indicated in the sale agreement was false and that no evidence of payment had been submitted. It therefore found the sale agreement was void, as was the reorganisation of LR Uniune by the establishment of Financiar Invest SRL, and ordered the transfer to the plaintiffs of the 157,024 shares issued by Victoriabank which were held by Financiar Invest SRL. The court found, however, that the reorganisation of LR Uniune by the establishment of Profinante SRL did not violate the plaintiff’s rights as they had acquired one hundred per cent of the capital share of that company. Victor Jantic, AM and Financiar Invest SRL appealed on the following grounds. First of all, they contended that the Economic Courts did not have jurisdiction to examine the case, as their competence was expressly limited to the examination of cases between a shareholder and a joint stock company, or between a joint stock company and members of another company, resulting from the economic activity of the joint stock company, and the case at hand did not result from the economic activity of any company. Secondly, the defendants complained that they were not legally summonsed and were not notified of the date and time of the hearing, and that the examination of the case in their absence deprived them of the possibility to avail themselves of their procedural rights in breach of the right to a fair trial guaranteed by Article 20 of the Constitution of the Republic of Moldova and Article 6 of the Convention. In particular, they were deprived of the opportunity to argue that the plaintiffs had instituted proceedings after the expiry of the relevant limitation period. Thirdly, they pointed to MA’s acquisition of shares in LR Uniune in 2006 as evidence of his consent to EA’s sale of the shares in 2003. Fourthly, they contended that communication by a seller (EA) of false information regarding the share price could not serve as a ground to declare a contract of sale void, especially where the seller’s claims were wholly unsupported by evidence. Fifthly, the defendants argued that there had been a de facto expropriation of their property in violation of Article 1 of Protocol No. 1 to the Convention. Finally, they challenged the order that 157,024 shares in Victoriabank be transferred to the plaintiffs on the basis that they had never owned shares in the bank, only in LR Uniune. The Appeal Court dismissed the appeal. It reiterated the findings of the lower court and insofar as it expressly considered the grounds raised by the defendants, it concluded that they were “groundless”. The defendants appealed to the Supreme Court, invoking similar grounds to those raised before the Appeal Court. In addition, they argued that the principle of random distribution of cases had been violated. However, the Economic Chamber of the Supreme Court declared their complaints inadmissible, considering them to be “unfounded”. (ii)     Case 2 Victoria Asiguraru SRL was an insurance company which held 124,224   shares in Victoriabank (a 3.88 per cent shareholding). At the beginning of 2007, legal ownership of the company was divided equally between VM (who was VP’s sister), Stela Corcodel and Vladimir Morari. Stela Corcodel and Vladimir Morari are associates of Viorel Ţopa and Victor Ţopa and both are party to application no. 40339/11.   On 3 January 2007 VM sold fifty per cent of the registered capital of Victoria Asiguraru SRL to Stela Corcodel and Vladimir Morari. Clause 5 of the sale contract – which had been notarised – stated that: “The “Seller” declared: that at the moment of the contract conclusion the sold “share” is free from any material or legal vices: is not seized, pledged, is not the object of a claim, there are no third parties that can raise any claims regarding it (the husband, [EM], verbally gave his consent to the conclusion of the contract).” The plaintiff, EM (who is the husband of VM), subsequently brought proceedings against Victoria Asiguraru SRL, VM, Stela Corcodel and Vladimir Morari. EM argued that on 3 January 2007 VM had sold over fifty   per cent of the share capital in the defendant company to Stela Corcodel and Vladimir Morari without his permission. He therefore asked the District Economic Court to annul the sale agreement and reinstate the parties. According to the judgment of the District Economic Court, the defendant company, Stela Corcodel and Vladimir Morari were legally summonsed but refused to accept the summonses. The defendant VM was present at the hearing. She did not present any arguments and confirmed her husband’s claim. The court considered the plaintiff’s claim to be well-founded as EM and VM were legally married at the date of the sale; although VM was registered as sole owner of the shares, both spouses had rightful ownership of them; EM did not consent to the sale; and the defendants should have been aware of this fact as they were not presented with his written consent. The court declared the contract null and void and ordered that the shares be returned to VM. As VM asserted that the price of the contract was never paid, the court further held that Stela Corcodel and Vladimir Morari could not claim restitution of the transaction price. Stela Corcodel filed an appeal, supported by Vladimir Morari. However, the appellate court considered that the first instance court had examined all factual and legal circumstances of the case and correctly reached the conclusion that the plaintiff’s claim was well-founded. It therefore dismissed the appeal. The defendants appealed to the Supreme Court on the following grounds. First of all, they submitted that the economic courts did not have jurisdiction to examine the case as the litigation did not derive from the economic activity of Victoria Asiguraru SRL and it was not litigation between shareholders of the company. Secondly, they argued that they had not been legally summonsed and that there had been a violation of the legal provisions concerning the delivery of the case material to them. Thirdly, they contended that the lower courts’ finding that Stela Corcodel and Vladimir Morari should have known that EM did not consent to the sale of the shares was unfounded, since under domestic law the consent of either a spouse or a co-owner to a sale of goods was presumed and, in any event, the contract stipulated that EM had given his oral consent to the transaction. Fourthly, the contract of sale contained a payment clause and the first instance court should not have accepted the plaintiff’s allegation of non ‑ payment based only on the oral testimony of his wife. The Economic Chamber of the Supreme Court dismissed the appeal. (iii)     Case 3 On 3 October 2006 Angela Nastase, an associate of Viorel Ţopa and Victor Ţopa and one of the applicants in application no. 40339/11, had acquired shares in AVB Prim SRL, a company holding 184,215 shares in the bank (a 5.76 per cent shareholding), from Investments and Business Ltd. Paragraph 4 of the sale agreement – which was authorised by a notary – stated that the sale price had been fully paid prior to the signing of the agreement. Investments and Business Ltd. was later dissolved, but by a debt transfer agreement dated 10 April 2007 it transferred its rights originating from the 3   October 2006 sale agreement to Financial Investments Corporation Ltd., a company controlled by VP. Financial Investments Corporation Ltd. subsequently brought proceedings against Angela Nastase and AVB Prim SRL requesting the annulment of the share sale agreement due to the non-fulfilment by the buyer of the obligation to pay the purchase price. In its judgment, the District Economic Court noted that the defendants, without justification, did not attend the hearing. It proceeded to uphold the plaintiff’s claim, finding that the provision in paragraph 4 of the agreement was not sufficient evidence of payment. Rather, it held that the method of payment also had to be proved through a separate document. As a result, it annulled the sale agreement and ordered that Financial Investments Corporation Ltd. be registered as sole shareholder of AVB Prim SRL. Angela Nastase appealed on the following grounds. First of all, she argued that the first instance court had examined the case in her absence, even though the place, date and hour of the hearing had not been communicated to her. She had therefore been deprived of a fair trial in breach of Article 20 of the Constitution of the Republic of Moldova and Article 6 of the Convention. Secondly, she contended that the economic courts had not been competent to hear the case as it did not concern the economic activity of a company and was not between shareholders. Thirdly, domestic law required the plaintiff to submit evidence that notice had been given to her to rescind the sale agreement and its failure to do so would have constituted reason for rejection of the complaint. Fourthly, according to domestic law, the express acceptance in paragraph 4 of the sale agreement that payment had taken place was definitive proof of payment and the buyer was not obliged to prove payment again. Fifthly, she argued that the transfer agreement of 10 April 2007 had been null and void, since at the date of its conclusion Investments and Business Ltd. had no rights to transfer and, in any event, it had not been authenticated by a notary. Finally, she submitted that there had been a breach of her right to property guaranteed both by Article 46 of the Constitution of the Republic of Moldova and Article 1 of Protocol No. 1 to the Convention. The Economic Chamber of the Court of Appeal dismissed the appeal, It noted that “no evidence exists to confirm that Angela Nastase paid the price of the agreement”, and that there was no violation of Article 1 of Protocol   No. 1 since the appellants had acquired the property illicitly. It further found that there had been no breach of Article 6 as the appellant had participated fully in the appeal proceedings. Angela Nastase appealed to the Supreme Court. In addition to the grounds raised before the appellate court, she observed that in a decision of 12 October 2009 the first instance court admitted the plaintiff’s application for a summons and set a hearing date without the plaintiff having paid the court fee. Instead, it postponed payment of the court fee to 11 December 2009 without having obtained any evidence of the plaintiff’s financial situation. The first hearing had taken place on 11 December 2009, but receipts showed that the court fee was not paid until 4 March 2010. Angela   Nastase therefore argued that the case had been admitted contrary to the Civil Procedure Code (that is, without either proof of payment of the court fee or proof of inability to pay the fee) and that there had accordingly been a breach of her rights under Article 6 of the Convention. Angela Nastase further contended that the first instance court had not followed the rules set down in the Civil Procedure Code for the summonsing of defendants. Finally, she argued that there had been a violation of the principle of the random distribution of cases. Together with cases 1, 4 and 5, the case at hand had significant financial consequences, yet of the twelve judges appointed to the District Economic Courts, these cases were assigned to three (Judges Namaşco, Rotari and Plugari) whose professional activity and reputation had been called into question by public scandals concerning illegal dispossession through deregistration. Moreover, a comparison of the dates on which these four cases were received for examination and their case file numbers, which were issued in chronological order, showed that the judges of the District Economic Court had admitted 1741 cases for examination in the course of 11 working days. On one single day during this period the court appeared to have admitted 518 cases for examination – a feat which Angela Nastase contended was “impossible”. The Supreme Court dismissed the appeal. It found that the economic courts had competence to hear cases between shareholders and, in any event, Angela Nastase had not asked for the case to be re-examined by the common law court. It further held that Angela Nastase had been properly summonsed; that there had been no violation of the principle of the random distribution of cases; that the non-execution of the sales agreement had been proved before both the first instance court and the Court of Appeal; that the transfer agreement of 10 April 2007 did not have to be authenticated by a notary because it did not address the rights over the shares of AVB Prim SRL; and finally, that there had been no breach of Article 1 of Protocol   No.   1 since Angela Nastase had not executed the obligations in the sale agreement. (iv)     Case 4 GPR was the owner of 129,194 shares in Victoriabank. The sole shareholder of Provileg Invest SRL was Inna Ilias, an associate of Viorel   Ţopa and Victor Ţopa. Both Provileg Invest SRL and Inna Ilias are party to application no. 40339/11. On 15 August 2007 there was a meeting of the shareholders of Provileg Invest SRL, at which GPR was represented by Vladimir Morari, to whom she had given power of attorney. At that meeting she transferred her shares in the bank to Provileg Invest SRL (which then held four per cent of shares in the bank); became a shareholder in Provileg Invest SRL; and sold her share capital in Provileg Invest SRL to Inna Ilias. Paragraph 5 of the sale agreement stated that Vladimir Morari, as the representative of GPR, had outlined the rights of her husband and co-owner (VPR) in relation to the transaction and indicated that he had agreed verbally to the conclusion of the agreement. GPR and VPR subsequently commenced proceedings against Inna Ilias in the District Economic Court, arguing that the sale agreement of 15   August 2007 was void because VPR had not consented to the sale. According to the decision of the District Economic Court, neither Inna Ilias nor Provileg Invest SRL was present at the hearing, despite having been legally summonsed. In their absence, the court found that the agreement was void for lack of spousal consent. It further held it to be void due to the fact that in signing it Vladimir Morari had acted outside the limits of the power of attorney. The power of attorney had only authorised him to carry out actions pertaining to the alienation of shares in Victoriabank and did not cover the alienation itself. The Court rescinded the sale agreement and ordered that the shares in the bank which were held by Provileg Invest SRL be re-registered in GPR’s name. Finally, the court considered it established that the contract was not executed as the sale price had not been paid to GPR. Inna Ilias and Provileg Invest SRL appealed against that decision. They argued, inter alia , that the first instance court had misapplied domestic law relating to spousal consent; that there were no limitations on the legal powers held by Vladimir Morari pursuant to the power of attorney; that they had not been legally summonsed; that there had been a breach of their rights under Article 6 and Article 1 of Protocol No. 1 to the Convention; and that the economic courts were not competent to examine litigation that did not concern the economic activity of a company and which was not between shareholders (VPR being only the spouse of a shareholder). The appellate court rejected the appeal, finding that the first instance court had ruled correctly in annulling the legal acts. The appellants appealed to the Supreme Court. In addition to the grounds raised before the Court of Appeal, they contended that there had been a breach of the principle of random case distribution. However, the Supreme Court held all their grounds of appeal to be unfounded. (v)     Case 5 Iurie Cobuscean, an associate of Viorel Ţopa and Victor Ţopa, was the sole shareholder in Maxim Profit Invest SRL. Both Iurie Cobuscean and Maxim Profit Invest SRL are party to application no. 40339/11. At a General Shareholders’ Meeting on 15 August 2007, VT transferred 78,970 shares in Victoriabank to Maxim Profit Invest SRL and was accepted as a second shareholder. VT was not present at that meeting but was represented by Vladimir Morari, acting pursuant to a power of attorney. On the same date, by a notarised contract of sale Iurie Cobuscean purchased VT’s share in Maxim Profit Invest SRL and VT was accordingly removed from the list of shareholders. At a General Shareholders’ Meeting on 20 September 2007 OT transferred 48,951 shares in Victoriabank to Maxim Profit Invest SRL and was accepted as a shareholder in Maxim Profit Invest SRL. By a notarised contract of sale dated 18 October 2007 he sold his share in Maxim Profit Invest SRL to Iurie Cobuscean and was accordingly removed from the list of shareholders. Like VT, he was represented in these transactions by Vladimir Morari, acting pursuant to a power of attorney. In both powers of attorney Vladimir Morari was authorised to represent the principals in respect of acts related to the alienation of their shares in the bank. As a consequence of these two transactions, Maxim Profit Invest SRL held four per cent of shares in Victoriabank. VT and OT subsequently petitioned the District Economic Court to annul, inter alia , the decisions of 15 August 2007 and 20 September 2007 on the basis that they had been concluded in violation of the limits of the power of attorney given to Vladimir Morari, since he was only given power to represent them in acts relating to the alienation of their shares and not in the actual alienation of those shares. They further contended that the prices recorded in the sales agreements were false and had not, in any event, been paid. Although the court’s decision indicated that Iurie Cobuscean and Maxim Profit Invest SRL had been properly summonsed, it noted that they did not attend the hearing. The court upheld the plaintiffs’ claims, which it considered well-founded, and ordered the return of the shares in Victoriabank to VT and OT. Iurie Cobuscean and Maxim Profit Invest SRL appealed to the Court of Appeal, arguing that the District Economic Court did not have jurisdiction to hear the case since it was not related to the economic activity of Maxim Profit Invest SRL and it was not a dispute between shareholders as the plaintiffs were no longer shareholders when they filed their complaint. They further argued that the first instance court should not have accepted the case for trial as the plaintiffs had neither paid the court fee nor provided proof of impecuniosity; that it tried the case too quickly to allow the legal summonsing of the defendants and the observance of their procedural rights; that it based its judgment on documents attached to the case file which were not properly authenticated; and that it did not order the reimbursement of the sums paid pursuant to the annulled sales agreements. They further contended that there had been a breach of their rights under Article 6 of the Convention and under Article 1 of Protocol No. 1. The Court of Appeal dismissed the appeal and upheld the judgment of the first instance court. With regard to the appellants’ Convention arguments, it found that there had been no breach of Article 6 as they had participated in the appellate proceedings and were able to present their case in “equitable conditions”; and that there had been no breach of Article 1 of Protocol No. 1 since the appellants’ assets had been acquired without paying the purchase price, as was required by domestic law. The appellants appealed to the Supreme Court. In addition to the grounds raised before the Court of Appeal, they contended that there had been a violation of the principle of random case distribution as the evidence “clearly proved” that the cases were “distributed deliberately”. They further submitted that the actions filed by the plaintiffs had been filed much later than the date specified therein. However, the Economic Chamber of the Supreme Court dismissed their appeal. (b)     Viorel Ţopa and Victor Ţopa’s concerns about the five cases According to Viorel Ţopa and Victor Ţopa, there were a number of irregularities in the five cases. (i)     The court register The court register appeared to have been tampered with. The court register of the District Economic Court is a hand-written ledger of cases in which information is inserted chronologically. New cases are assigned a chronological number. In respect of cases 1, 2, 4 and 5 there were signs of re-touching. The reference to case 3 was inserted at the bottom of one page of the register and the case at the top of the following page was assigned the same chronological number. Moreover, in each of the cases both the date of execution of the power of attorney and the date of payment of the court fees was much closer to the date of the District Economic Court’s substantive determinations than the date of entry in the court register. In fact, in four of the five cases the date of execution of the power of attorney post-dated the official date of the hearing of the case. It is the belief of Viorel Ţopa and Victor Ţopa that the entries in the register were fabricated to conceal the true date on which the cases were actually issued and to suggest that the cases had been randomly allocated. (ii)     Concealment of the proceedings before the first instance court Viorel Ţopa and Victor Ţopa point to a series of irregularities which they believe had as their primary purpose the concealment of the raider attack prior to the 2010 AGM and which prevented them from frustrating the attack by seeking relief before the civil courts. The applicants who were defendants in the five cases state that there was no pre-action notification of the proceedings and that they did not receive the final hearing summons. In cases 1, 3, 4 and 5 records show that the summonses were “served” on 11 March 2010 and returned “undelivered” on 19 March 2010, the date the cases were determined. Section 108 of the Government’s Decision No. 798 of 18 June 2002 provided that if it was not possible to hand mail to a recipient it had to be held at the post office for (in the case of special mail, such as a summons) seven days, after which it was to be returned. It was therefore practically impossible for these summonses to have been sent and returned within eight days. Furthermore, Article 108 of the Civil Code required the president of the court to order the public summoning of a defendant if he or she cannot otherwise be found, despite all reasonable efforts; however, there is no evidence to suggest that this procedure was followed in any of these four cases. In case 2 the summons was returned with a post office certificate stating that the defendants refused to accept it. However, a certificate from Vladimir Morari’s local post office indicated that no correspondence was received in his name and that the signatures on the certificate in the court file, allegedly coming from that post office, did not belong either to the postman or to the head of the post office. Viorel Ţopa and Victor Ţopa believe that the earlier hearing date in case 2 meant that there was insufficient time to invoke the seven-day rule as justification for the return of the summons. The applicants who were defendants in the five cases further claim that they were not informed of the judgments delivered by the District Economic Courts, in violation of Article 259 of the Civil Procedure Code. (iii)     The principle of the random allocation of cases There was a breach of the rule on the random allocation of cases. The principle of random allocation of cases is contained in Article 6 of the Law on Judicial Organisation No. 514-XIII of 7 July 1995 (as amended). Articles   27 and 39 of that law require the Presidents of the Courts to organise the random distribution of cases for examination by judges. However, despite the fact that there were ten judges of the Economic Court of Appeal and ten judges on the Economic Panel of the Supreme Court (and forty-nine in total, who can and do sit on appeals from the Economic Courts), the Court of Appeal and Supreme Court panels were nearly identical in each of the five cases (see appendix 2). The defendants in the five cases subsequently raised this issue before the Supreme Council of Magistracy, which stated in reply that Judge Namasco had been reminded of the necessity of “strict compliance with the legal framework regarding the random distribution of cases”. (iv)     The jurisdiction of the Economic Courts Viorel Ţopa and Victor Ţopa contend that in each of the five cases the District Economic Court (and the economic chambers of the Court of Appeal and Supreme Court) had no legal jurisdiction in respect of the plaintiffs’ claims. Pursuant to Article 29(1)(b) of the Civil Procedure Code, the economic courts have jurisdiction in cases between a shareholder and a joint stock company, and between members of other companies and a joint stock company, which results from the economic activity of the company. In the five cases, the plaintiffs were not shareholders as they had sold their shares in the companies. (v)     Distortion and misapplication of substantive law The three principal arguments invoked by the plaintiffs in the five cases were “the spousal consent argument”, “the false price argument” and “the non-payment argument”. With regard to the spousal consent argument, Viorel Ţopa and Victor Ţopa believe that the approach taken in the five cases departed from Moldovan law and was “manifestly erroneous and perverse” as the courts reversed the burden of proof set out in Article 118 of the Civil Code (the obligation to prove facts in court). Even though there was no contemporary or independent evidence that the sales had been made without the consent of the spouses, and there was no evidence that the purchasers ought to have known of this lack of consent, the courts nevertheless required the purchasers to prove that they could not have known of the alleged lack of consent. This approach was entirely at odds with a commentary in the Judicial Handbook – written by Judge Rotari, who sat in two of the five cases – which states that there is a “presumption of common consent” by co-owners when disposing of property and a contract can only be held to be void if the purchaser’s bad faith is proved. Furthermore, on 26 January 2011 a differently constituted Supreme Court held in Petrache v. Petrache and   Others (Judgment no. 2ra-151/2011) that there was a significant burden on a plaintiff seeking to establish that a person ought to have known that property was jointly owned at the time of transfer and that the co-owner was opposed to the sale. In this regard, the court expressly found that it was insufficient for a plaintiff to rely on statements by witnesses with an interest in the outcome and/or a connection to themselves. According to Viorel Ţopa and Victor Ţopa, the courts’ findings with regard to the false price arguments were also “gross distortions” of Moldovan law, since Article 50(4) of the Law of Public Notaries provided that liability for the communication of a false price should be borne by the “guilty party”. Although the sellers had been the “guilty party” (as it was they who obtained a tax advantage by communicating a false price), in the five cases they were able to benefit from their own wrongdoing. Moreover, in cases 1, 4 and 5 there were addendums to the sale agreements which stipulated a substantial price in addition to the initial price. In cases 4 and 5 the appellate courts rejected the defendants’ reliance on these addendums, considering them to be an “admission” by the defendants of the existence of a “false price”. However, in case 1, an identically constituted appeal court found that a materially identical addendum in the sale agreement between Profinante SRL and the husband of VP’s secretary rendered the statement of a false price in the agreement itself “irrelevant”. In relation to the non-payment argument, the notarised sale agreements contained declarations by the plaintiffs that the price had been paid and the courts did not rely on any evidence to the contrary. Consequently, Viorel Ţopa and Victor Ţopa consider that the judgments of the domestic courts violated at least three provisions of domestic law: Article 3(3) of the Law on Notaries, which contains a presumption of validity of notarised acts; Article   643(3) of the Civil Code, which places the burden of proving non ‑ performance on the person claiming it; and Article 118(1) of the Civil Code, which obliges the parties to prove the facts they assert. In addition, Viorel Ţopa and Victor Ţopa consider it unusual that in cases   1 and 5 the courts ordered that the defendants’ shares in Victoriabank be registered in the plaintiffs’ names, even though the plaintiffs had never owned shares in the bank. (c)     Subsequent developments Viorel Ţopa and Victor Ţopa notified the Prosecutor General’s Office, asking it to investigate the case and identify the perpetrators. The investigation was assigned to a prosecutor who concluded that there was insufficient evidence to initiate a case. Legal proceedings in the United Kingdom and Cyprus disclosed that all the shares in Victoriabank which were the subject of the five cases were eventually transferred to a company called OTIV Prim Financial BV (Holland). The sole shareholder of this company is Finbar Victoria Limited (Cyprus), a company which is beneficially owned by VP. On 9 November 2012 the applicants learned that on 11 and 12 October 2012 the State Chamber of Registration had modified the register of legal entities so as to register new legal owners of Maxim Profit Invest SRL, Provileg Invest SRL and Financiar Invest SRL (which were previously owned by Iurie Cobuscan, Victor Jantic and Inna Ilias). These modifications were based on what the applicants claim were forged minutes of the three companies’ General Shareholders’ Meetings, which claimed to have accepted a capital increase so that the new shareholders achieved 94.6% of each of the three companies’ capital. Four powers of attorney were attached – which the applicants also claim were forgeries – which authorised three Ukrainian nationals to represent Iurie Cobuscan, Victor Jantic and Inna Ilias at the meetings. The three applicants claim that they did not sign the powers of attorney. They sought to challenge the decisions of the State Chamber of Registration and asked the court to annul the forged minutes and powers of attorney. However, their applications were returned by the court on the basis that they did not contain fax numbers and emails for the plaintiffs. 2.     The alleged “raider attacks” in 2011 Viorel Ţopa and Victor Ţopa assert that they were the beneficial owners of companies which had shareholdings in Victoriabank SA, ASITO SA and Banca de Economii SA. They claim that they were divested of these shareholdings in three separate cases. In each of these cases a company claimed that it had made a loan of several million dollars to an individual and that the company or companies owned by Viorel Ţopa and/or Victor   Ţopa had guaranteed that loan by means of its/their shares in either Victoriabank SA, ASITO SA or Banca de Economii SA. As the lenders claimed that the loans had not been repaid, the domestic courts transferred the shares used to guarantee the loans to those companies. Although each of the relevant orders was annulled on appeal, the orders annulling the decisions were later quashed. Viorel Ţopa and Victor Ţopa claim that the loan agreements were forgeries; that they had never had any dealings with the plaintiff companies; and that they were notified of neither the proceedings nor the courts’ decisions. 3.     The criminal proceedings According to Viorel Ţopa and Victor Ţopa, upon discovering that they had been divested of the bulk of their share capital and voting rights in Victoriabank, they informed VP that they would tell the public about the theft. In response, he informed them that if they did so he would bring criminal charges against them. On 11 August 2010 Viorel Ţopa and Victor Ţopa held a press conference together with other individuals who claimed to have been subject to unlawful action by VP. They publicly accused VP of perpetrating the raider attack against their shares in Victoriabank. The same day, VP held his own press conference in which he stated that the attack on him was “conducted by persons who are under criminal investigations”. Criminal proceedings were subsequently brought against Viorel Ţopa, Victor Ţopa and Vladimir Morari. (a)     Victor Ţopa and Vladimir Morari Victor Ţopa and Vladimir Morari were indicted on a charge of blackmail relating to the acquisition of shares in Victoriabank in 2007. The alleged blackmail and the resulting share transactions were carried out in Moscow, Russia. The shares had been acquired from GPR, VT and MA for the benefit of Viorel Ţopa, Victor Ţopa and VP, who were business partners at the time. Vladimir Morari had personally executed the share transactions under powers of attorney entered into by all relevant individuals, including the sellers. These transactions were subsequently voided by the District Economic Courts in cases 1, 4 and 5 (being three of the five cases forming the basis of the alleged “raider attack” in 2010). In those proceedings the sellers had sought – and been granted – the return of the shares on the basis that their spouses had not consented to the sales. There had been no suggestion in the proceedings before the District Economic Courts that the shares had been acquired as a result of blackmail. The criminal investigation into Victor Ţopa and Vladimir Morari was initiated by the General Prosecutor and conducted by his office. On 11   November 2010 the General Prosecutor transferred the case to the Center for Combating Economic Crimes and Corruption (“the CCECC”) and on 15   November 2010 a Superior Officer of criminal investigations at the CCECC issued a report for the Anti-Corruption Prosecutor stating that the criminal investigation, which had been ongoing since 12 June 2010, had found that Victor Ţopa and Vladimir Morari had “committed the crime of blackmail”. The report therefore recommended the termination of the criminal investigation and the referral of the case to the criminal court for trial. The CCECC indicted and charged Victor Ţopa and Vladimir Morari with offences under Article 189 of the Moldovan Criminal Code. They were indicted before the Buiucani District Court. On 2 December 2010 the Chairman of the Buiucani District Court assigned the case to Judge Plamadeala. The Chairman stated that in accordance with the established procedure, the case should have been distributed to Judge Girbu, but as she was on sick leave taking care of her minor child the case had to be assigned to another judge. At a preliminary hearing on 28 January 2011 Victor Ţopa and Vladimir   Morari were informed that they had been charged with an offence under Article 189(6) of the Criminal Code, which applies where the offence of blackmail has been committed “on an especially large scale”. In such a case, the offence is punishable by a sentence of ten to fifteen years in prison. During a hearing on 23 February 2011 the lawyer for Victor Ţopa and Vladimir Morari requested the transfer of the case from the Buiucani District Court. As the crime had allegedly been carried out in Russia, Article   40 (3) of the Criminal Procedure Code provided that the competent courts were the courts in the districts in which the defendants were last domiciled. In the case of the second and third applicants, these were – respectively – the Chisinau Centre District Court and the Orhei District Court. The Buiucani District Court rejected the transfer request. On 5 October 2011 Judge Plamadeala made an order for the arrest and detention of Victor Ţopa and Vladimir Morari and listed a hearing for 18   October 2011. An appeal against this order was listed to be heard by the Court of Appeal on 13 October but was subsequently rescheduled for 19   October. As a consequence, the prosecutor indicated that the hearing before the District Court had been delayed until 21 October 2011. However, at the appeal hearing on 19 October 2011 Victor Ţopa and Vladimir   Morari’s lawyer was informed by the Chairman of the Appeal Panel that the Buiucani District Court had listed the hearing at 12.00 noon the same day. When the Victor Ţopa and Vladimir Morari’s lawyer went to the courthouse at noon, it was locked and empty. According to the court file, a hearing began in the Buiucani District Court at 2.15 p.m. on 19 October 2011. The court record indicated that Victor   Ţopa and Vladimir Morari had lodged a request asking the court to examine the case in their absence, and that their lawyer was absent for “unknown reasons”, despite having been legally summonsed. The case proceeded in their absence and they were convicted and sentenced to ten years’ imprisonment in a closed regime. Victor Ţopa and Vladimir Morari appealed to the Court of Appeal. On 14   September 2012 the Court of Appeal allowed the appeal, re-examined the case and pronounced a new judgment. By a majority, it f