CASE OF DOLNEANU v. MOLDOVA
Violation of P1-1;Violation of Art. 13 + P1-1;Not necessary to examine Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
Josep Casadevall
5. The applicant was born in 1930 and lived in Puhoi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant deposited money in three different accounts in the Savings Bank ('the Bank'), which was, during Soviet times, State-owned. 8. In 1994 Parliament adopted Decision no. 201-XIII on the indexing of citizens' savings in the Savings Bank of Moldova” (“the 1994 decision”) whereby persons who had reached the age of 60 by 1 January 1994 and who had savings in their accounts in the Bank on 2 January 1992 were entitled to recover a part of their deposits at the rate of one Moldovan leu (MDL) for one Soviet rouble for the first thousand roubles deposited in each account. 9. On 16 February 1995 the Government adopted Decision no. 108, whereby it created a Commission charged with establishing the amount of compensation to be transferred by the Ministry of Finance (“the Ministry”) by the 25th day of each month to the Bank for compensation purposes, on the basis of the allocations made for that purpose in the State budget for the relevant year. 10. The applicant had more than a thousand roubles in each of his three accounts in the Bank and he claimed accordingly MDL 3,000 (the equivalent of 750 United States dollars (USD)). On 7 June 2000 he received MDL 570 after the Ministry of Finance (“the Ministry”) transferred money to the Bank for compensation purposes. He continued to request the remaining amount and to complain to various authorities. 11. On 8 November 2001 he initiated court proceedings against the Bank and the Ministry to recover the remaining amount and seeking compensation for the late payment (since the value of the money was depreciating because of high inflation) and for non-pecuniary damage caused by having to wait for the payment (the applicant was recognised as second-degree disabled and had a monthly State pension of MDL 89). Both defendants accepted that the applicant had a right to obtain the outstanding amount of compensation, and stated that the delay in paying was due to the failure to include in the State budget the allocations for that purpose. According to the Ministry, during 1995-1997 it transferred to the Bank 26% of the money necessary to pay the compensation in full to all those affected by the 1994 decision. However, the State budget did not allocate any further funds during 1998-2000, while an additional 7% of the total amount was allocated in the budget for the year 2001. The applicant did not receive any compensation in 2001. 12. On 4 March 2002 the Centru District Court partly accepted the applicant's claim. It found that the main responsibility for the delay in paying his outstanding compensation lay with the Ministry, which had not transferred the necessary money to the Bank. It ordered the Bank to pay the applicant MDL 266 and the Ministry to pay him MDL 2,163, which constituted the remaining amount due under the 1994 decision (a total of MDL 2,429, or EUR 210 at the time). The court rejected the claim for compensation in respect of pecuniary and non-pecuniary damage because there was no law dealing with such claims. 13. In an appeal, the applicant expressly requested the court, on the basis of Article 4 of the Constitution, to apply directly Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention as regards the absence of domestic remedies. 14. On 7 May 2002 the Chişinău Regional Court upheld the judgment of 4 March 2002, repeating the reasoning of the first-instance court in rejecting the claim for compensation in respect of pecuniary and non-pecuniary damage. 15. In an appeal, the applicant repeated his arguments advanced before the lower courts and relied in addition on Article 6 of the Civil Code (see paragraph 18 below). 16. On 3 September 2002 the Court of Appeal also upheld the lower courts' judgments and confirmed their reasoning in rejecting the claim of compensation in respect of pecuniary and non-pecuniary damage, because it “had no support in law”. That judgment was final. On 29 July 2004 the outstanding amount was transferred to the applicant's account. 17. The relevant provisions of the Constitution read as follows: “Article 4 Human rights and freedoms (1) The constitutional provisions regarding human rights and freedoms shall be interpreted and applied in line with the Universal Declaration of Human Rights and with the covenants and other treaties to which Moldova is a party. (2) In the event of a conflict between the covenants and other treaties regarding human rights and freedoms to which Moldova is a party and its domestic legislation, the international provisions shall take precedence.” “Article 20 Free access to justice (1) Every citizen shall have the right to obtain effective protection from competent courts of jurisdiction against actions infringing his or her legitimate rights, freedoms and interests. (2) No law may restrict access to justice.” 18. The relevant provisions of the Civil Code, in force before 12 June 2003, read as follows: “Article 6 Protection of civil rights. Civil rights shall be protected in accordance with the rules determined by the competent courts...: by recognising those rights; ... by obliging persons who violate a right to compensate for the damage caused..., as well as by other means provided for by law. Article 215 Obligation of the debtor to compensate for the damage If the debtor does not fulfil his obligation or fulfils it inappropriately he shall compensate for the damage caused to the creditor. The compensation shall include the creditor's costs, loss of or damage to items, as well as loss of any profits which the creditor would have obtained had the obligation been fulfilled.” 19. Parliament's decision “Concerning the indexing of citizens' savings in the Savings Bank of Moldova” (No. 201-XIII, 29 July 1994) reads as follows: “Article 1 – Citizens' savings in the Savings Bank of Moldova ...shall be indexed on the basis of the account balance on 2 January 1992 for those account holders who on 1 January 1994 had reached the age of 60 – the first thousand roubles on all accounts according to the ratio one [Soviet] rouble : to one leu [MDL]. Article 2 – The Government and the National Bank of Moldova: within one month shall decide upon and propose the manner and mechanism of amortisation of the indexed amounts and the sources of compensation; shall make proposals regarding the manner of indexation of citizens' other deposits of the population in the Savings Bank of Moldova” 20. The relevant provisions of the Law on the indexation of citizens' savings in the Savings Bank (No. 1530-XV, 12 December 2002) (“the 2002 Law”) read as follows: “... Article 2 Indexation The savings of citizens of the Republic of Moldova deposited in the Savings Bank ... shall be indexed on the basis of the account balance on 2 January 1992: a) according to the ratio one rouble to one leu [MDL] for the first thousand roubles of the cumulative balance of all accounts of natural persons (account holders); b) according to the ratio two and a half roubles to one leu [MDL] for the balance exceeding the amount indicated under (a) for natural persons (account holders). Article 3 Manner of payment The amounts indicated in Article 2 shall be paid in instalments, starting in 2003. Article 4 Financial means of payment (1) Payment of the indexed amounts shall be made from the State Budget. (2) The annual Budget shall provide, for the relevant year, the quantum of financial means for the payment of indexed amounts... Article 5 Phases of indexation (1) Indexation of the amounts and their payment shall be made, at the account holders' request, in phases, with priority for the first thousand roubles, then for the balance exceeding the first thousand roubles, in accordance with the account holder's year of birth. Article 7 The Government: a) shall adopt, within one month, a Regulation regarding the indexing and manner of payment of the indexed amounts of citizens' savings in the Savings Bank; b) shall determine annually, depending on the amounts provided in the Annual Budget for indexation, the categories of citizens whose savings are to be indexed...”