CASE OF TUDOR-AUTO S.R.L. AND TRIPLU-TUDOR S.R.L. v. MOLDOVA
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
6. The applicants, Triplu-Tudor S.R.L. and Tudor-Auto S.R.L., are two companies incorporated under Moldovan law. 7. On 18 November 1993 the State Service for the Supervision of Insurance by the Ministry of Finance of the Republic of Moldova (“the Service”) (Serviciul de Stat pentru supravegherea asigurărilor pe lângă Ministerul Finanţelor al Republicii Moldova) registered the insurance company Tudor and Co. S.R.L., founded by three private parties T.N., V.N. and L.R. (“the founders”). On an unspecified date the founders lodged with the Service a request to register two other insurance companies, which on 3 November 1995 were registered as Triplu-Tudor S.R.L. and TripluTudorAuto S.R.L. They also sought the registration of changes in the companies’ founders, namely the replacement of T.N. and V.N. with other founders, and in one of the company’s names from Triplu-Tudor-Auto S.R.L. into Tudor-Auto S.R.L. On 25 and 27 December 1995 and on 11 January 1996 the Service granted their requests. 8. On 10 June 1997 the Government adopted Decision no. 533 “on certain regulatory measures of insurance activity” (see paragraph 31 below), according to which insurance companies had to fulfil certain formalities and to obtain new registration certificates before 1 August 1997. 9. On 31 July 1997 Triplu-Tudor S.R.L. and Tudor-Auto S.R.L. submitted to the Service the required documents together with the evidence of increase in their statutory capital up to 300,000 Moldovan lei (MDL), (65,197 euros (EUR) at the time), as provided for by section 1 of decision no. 533, and requested to register the changes in the constitutional documents and to be issued with new registration certificates for insurance activity (“the certificates“). Since the Service refused to comply with their requests, on an unspecified date each of the applicant companies brought actions against the Service, seeking to order it to register the requested changes and to issue new registration certificates. 10. On 15 January 1998, during the proceedings before the first-instance court, the Service only registered the changes in the companies’ statutory capital. 11. On 31 March 1998 the Chişinău Economic Court ruled in favour of the applicant companies and ordered the Service to issue them with new registration certificates. On 15 April 1998 the applicant companies were issued with enforcement warrants which stated “for immediate enforcement”. The Service appealed. 12. On 24 June 1998 the Appellate Chamber of the Chişinău Economic Court rejected the appeals of the Service in both cases. No further appeals were lodged and the judgments became final and enforceable. 13. The Service took a number of steps designed to either annul the final judgments or to prevent their enforcement. On 21 July 1998 and 1 June 1999 the Service annulled its decisions of 25 and 27 December 1995 and of 11 January 1996. 14. On 1 December 1998 the Service requested a stay of the enforcement proceedings, which was dismissed by the Chişinău Economic Court on 12 February 1999. 15. On an unspecified date it asked for a revision of the judgments of 31 March 1998. On 15 July 1999 the Chişinău Economic Court dismissed the request as unfounded. 16. On 8 February 2000 the Service lodged a new request for a revision of the judgments of 31 March 1998. By a final decision of 6 September 2000 the Supreme Court of Justice dismissed the request. 17. In a separate set of proceedings, on 28 September 1999 the Rîşcani District Court fined the Director of the Service for failure to comply with the judgments in favour of the applicant companies. Following an appeal lodged by the Director, on 4 July 2000 the Supreme Court of Justice quashed the judgment of 28 September 1999 and discontinued the proceedings against him as statute-barred. Nevertheless, in a separate decision of the same date the Supreme Court of Justice specifically addressed the Ministry of Finance about the need to enforce the final judgments in order to avoid subsequent damage to State interests. 18. On 24 January 2001 the Service issued each of the applicant companies with certificates, but the Minister of Finance did not sign them so that they had no legal force. In February 2001 the applicant companies requested a bailiff to fully enforce the judgments and to obtain the signature of the Minister of Finance on the certificates. 19. On 18 May and 4 June 2001 the State Registration Chamber requested the applicant companies to submit certain documents in order to re-register the companies, as provided for by a new law on State registration of enterprises. Since the requests specifically stated that the applicant companies should have submitted the originals of their registration certificates, the latter failed to comply with the requests. 20. The judgments of 31 March 1998 have not been enforced to date. 21. On 19 April 2000 T.P. (it appears from the case file that the founder T.N., see paragraph 7 above, had changed his name) lodged a request to join the proceedings which ended with the final judgment of 31 March 1998 as a third party. He claimed that he was the owner of a 50% share in the applicant company and that the changes to the applicant company’s statutory documents, introduced on 11 January 1996, had been adopted without his knowledge. 22. By a final decision of 20 September 2000 the Appellate Chamber of the Economic Court dismissed T.P.’s request as unsubstantiated. 23. On 6 October 2003 T.P. lodged with the Economic Court of Appeal a request for a revision of the judgment of 31 March 1998, relying mainly on the same grounds as in his request of 19 April 2000. On 8 December 2004 the Economic Court of Appeal dismissed the request as unsubstantiated and statute-barred, since it had been lodged more than three months after the date on which T.P. had found out about “new relevant circumstances”. T.P. lodged an appeal on points of law. 24. On 31 March 2005 the Supreme Court of Justice upheld his appeal on points of law and quashed the judgment of 31 March 1998. It ordered a full re-examination of the case. The Supreme Court did not deal with the issue of the three-month time-limit for lodging the revision request. 25. The outcome of the reopened proceedings is unknown. 26. The relevant domestic law concerning non-enforcement of a final judgment is set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts). 27. The relevant domestic law concerning the revision of a final judgment is set out in Popov v. Moldova (no. 2), no. 19960/04, §§ 26-29, 6 December 2005. 28. The relevant provisions of the Law no. 1508-XII of 15 June 1993 “on insurance”, in force between 15 June 1993 and 21 December 2006, read as follows: “Section 48. Funds and reserves of the insurer (1) The guarantee of the financial stability of the insurer consists in disposing of a statutory capital tantamount to the volume of its insurance obligations. The minimum statutory capital of the insurer shall constitute 300,000 lei, in monetary deposits. Section 49. The guarantee of the insurer’s solvency (...) (2) The solvability reserve for life and pension insurances shall be composed of the statutory capital, the reserve fund and the long-term premiums’ reserve and shall constitute not less than 8% of the insured amounts. (3) The solvability reserve for other types of insurance shall be composed of the statutory capital, the reserve fund, the reserve fund for other types of insurance, and shall constitute not less than 1% of the insured amounts (...)” “Section 54. The scope and the main duties of the State Service for the Supervision of Insurance: (1) The State Service for the Supervision of Insurance (...) has the duty to supervise insurance activity, to guarantee the protection of rights of the insured and insurers (...) (2) The main duties of the Service (...) are: a) to examine the constitutional documents of insurance companies submitted for registration (...); b) to hold a record of the insurers; c) to issue licences for insurance activities (...);” 29. Amendments to Law no. 1508-XII of 15 June 1993 “on insurance” of 25 March 2003, read as follows: “[Section 48] the text “300,000 lei” is replaced by the text “2 million lei”” 30. The relevant provisions of Law no. 407 of 21 December 2006 “on insurance”, read as follows: “Section 22. Statutory capital of the insurer (re-insurer) (1) The minimum statutory capital of the insurer (re-insurer) shall be 15 million lei (...). (...) (2) At the moment of registration, the statutory capital of the insurer (re-insurer) should be entirely deposited by its founders. (3) Contributions to the minimum statutory capital shall be entirely deposited in money both at the moment of creation [of the company] as well during increase [of the statutory capital]. (4) The means obtained by the potential shareholders of the insurer (re-insurer) from loans, bank credits, mortgage or other investments, including investments of other participants of the insurance market (...) cannot serve as a source of formation or increase of the insurer’s statutory capital.” “Section 57. (1) Insurers, who hold of licences (..) at the moment of entering into force of the present law, are authorised to continue their activity for the next twelve months, during which period they shall comply with the provisions of the present law, except for the cases provided in paragraphs (4)-(7). (2) Licences for insurance activity which had been issued prior to the entering into force of the present law and which are valid for a period longer than the one provided for in paragraph (1), shall be valid until the expiry of the period for which they had been issued. (4) Insurers who hold of licences at the moment of entering into force of the present law, shall: (...) (b) have of a minimum statutory capital in the amount of: 4 million lei – after one year from the moment of entering into force of the present law; 6 million lei – after two years from the moment of entering into force of the present law; 9 million lei – after three years from the moment of entering into force of the present law; 12 million lei – after four years from the moment of entering into force of the present law; 15 million lei – after five years from the moment of entering into force of the present law.” 31. The relevant provisions of Government Decision no. 533 of 10 June 1997 “on certain regulatory measures of the insurance activity”, in force between 10 June 1997and 8 November 2005, read as follows: “1. Insurance organisations, (...) shall increase their statutory capital up to 300,000 lei before 1 August 1997. 2. The Service (...) shall issue new registration certificates to the organisations which comply with the requirements provided for by paragraph 1 of the present Decision. 3. In order to be issued with new certificates, the insurance organisations shall: - pay the Service a fee in the amount of one minimum salary (...); - submit the original of the documents which confirm the address, the existence of the [required] statutory capital, the real value of its actives accumulated from its own resources, the certificate issued by the fiscal authorities concerning payments to the Social Fund and the certificate of State registration of the organisation. 4. The old-type registration certificates of the insurance organisations shall become void as of 1 August 1997.”