CASE OF DESERVIRE S.R.L. v. MOLDOVA
Violation of Article 6 - Right to a fair trial;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial)
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 13 October 1992 the local authorities of Briceni decided to split the State-owned Regional Association for Production and Services (“the Association”) into two companies, one of which was the applicant company. On 28 December 1992 the applicant company was officially registered with the authorities as a private company and was subsequently assigned certain assets belonging to the Association. 7. The applicant company operated until 3 December 1993, when the local authorities sealed its premises in order to recover State property allegedly held by it. On 16 December 1993 the local authorities decided to create a State-owned company (“the State company”) with a similar name to that of the applicant company and to transfer to it the Association's assets which had been assigned to the applicant company in 1992. 8. The applicant company claimed that its own property had been seized on 3 December 1993 together with the property that had formerly belonged to the Association and had been assigned to it in 1992. It also claimed that it had paid for the property assigned to it in 1992 and that therefore the seizure of 3 December 1993 had been unlawful. When the State company refused to return the seized assets, the applicant company initiated court proceedings. 9. On 12 May 1994 the Briceni District Court allowed the applicant company's claims. On 1 June 1994 the Supreme Court of Justice quashed that judgment and ordered a full rehearing of the case. 10. On 15 February 1995 the Briceni District Court discontinued the proceedings on the ground that the arbitration courts were competent to examine such cases. On 22 March 1995 the Supreme Court of Justice upheld that decision. 11. On an unknown date in 1995 the applicant company initiated proceedings before the Arbitration Court. On 27 November 1995 the Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order, which was amended on 19 December 1995. 12. On 5 February 1996 the enforcement of the decision of 27 November 1995 was suspended pending an appeal before the Supreme Court of Justice. 13. On 2 July 1996 the decision of 27 November 1995 was amended by the Arbitration Court, reducing the amount awarded to the applicant company. 14. On 1 July 1997 the Arbitration Court of the Republic of Moldova annulled all the previous judgments and ordered a full rehearing of the case. 15. On 26 September 1997 the Chişinău Arbitration Court partly allowed the applicant company's claims. 16. On 14 November 1997 the applicant company complained to various authorities, including the Supreme Council of the Judiciary, of unnecessary delays in the proceedings. The complaints were forwarded to the court examining the case. 17. On 16 January 1998 the Appeals Chamber of the Arbitration Court of Moldova quashed the judgment of 26 September 1997 and ordered a full rehearing of the case. 18. On 23 March 1998 the Chişinău Arbitration Court partly allowed the applicant company's claims. On the same day the court issued an enforcement order. No appeal was lodged and the judgment became final fifteen days later. 19. On 4 May 1998 the Prosecutor General's Office lodged an application for annulment of the final judgment and asked the Supreme Court of Justice to reopen the proceedings. On 3 June 1998 the Supreme Court of Justice allowed the request and quashed the final judgment of 23 March 1998, ordering a full rehearing of the case. 20. The Chişinău Arbitration Court scheduled some thirty-one court hearings in the months that followed, almost all of which resulted in decisions to adjourn the proceedings and summon the parties for another date, because more evidence was necessary, or one of the parties was absent, or because a connected set of proceedings to determine who should represent the State company was in progress. This period lasted from 23 September 1998 until 25 March 1999. 21. During one of the hearings, on 8 October 1999, the court noted that there was a disagreement between the parties as to the correct valuation of the disputed property and concluded that an expert valuation was necessary. It therefore suspended the proceedings and ordered an expert report on the companies' accounts, to be paid for by the applicant company. The report, dated 18 May 2000, confirmed that the State company owed the applicant company 778,877 Moldovan lei (MDL). According to the Government, the report was submitted to the court on 21 July 2000. 22. On 15 December 2000 the applicant company sought leave to pay the court fees by instalments, referring to its poor financial state. The Court accepted the request, noting, inter alia, that the proceedings had started in 1995, that the case had been sent for a fresh examination and that the examination of the case had already lasted for a long time. 23. On 19 November 2002 the Chişinău Arbitration Court partly allowed the applicant company's claims. 24. On 12 February 2003 the Supreme Court of Justice decided to assign the case to the Chişinău Court of Appeal in view of the fact that all the judges of the Appeals Chamber of the Economic Court had already examined the case earlier. 25. On 3 June 2003 the Chişinău Court of Appeal upheld the judgment of 19 November 2002. 26. On 23 October 2003 the Supreme Court of Justice quashed the lower courts' judgments and adopted a new one, rejecting all the applicant company's claims as unfounded. It found, in particular, that it had not been proved with sufficient certainty that the applicant company had acquired any property of its own in addition to the property which had been assigned to it in 1992 and which it had had to return to the State company. Several items which the applicant company had proved to be its own property had been returned by the State company or compensation had been paid. The creation of the applicant company, with State property but in private ownership, had been contrary to the law, and a number of its claims concerning its financial dealings with the State company could not be verified because the original documents had been destroyed after the expiry of the relevant time-limits for keeping them. The judgment of the Supreme Court of Justice was final. 27. On 28 March 2008 the Appeals Chamber of the Economic Court of Moldova decided to put the applicant company into liquidation for non-payment of debts.