CASE OF NICHIFOR v. THE REPUBLIC OF MOLDOVA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1966 and lives in Chișinău. 6. The applicant was a shareholder in a limited liability company created in 2002 with a registered capital of 5,400 Moldovan lei (MDL) (the equivalent of some 396 euros (EUR)). At the time of the events he owned 50% of the company’s shares. The other half of the shares was owned by A.N. 7. On 13 January 2009 A.N. lodged an action with the Chişinău Economic Court seeking the applicant’s exclusion from the list of shareholders on the grounds, inter alia, that he had not paid for his part of the shares, that is to say he had only paid MDL 1,080 instead of MDL 2,700. The applicant objected, claiming that the action was time-barred: under the relevant law, it had to be introduced within three years of the creation of the company. The applicant also presented bank documents which showed that A.N. had not paid his part of the shares until September 2009. 8. On 14 March 2009 the Chişinău Economic Court dismissed the action against the applicant on the grounds that it was time-barred. A.N. appealed. 9. The hearings before the Economic Court of Appeal took place on five different dates: 30 April, 27 May, 2 June, 4 June and 9 June 2009. On 2 June 2009 A.N.’s representative submitted that the applicant had not paid his contribution and that he had been asked to do so every year since the creation of the company in 2002. When asked whether there were any minutes to confirm the contention that the applicant had been summoned to pay his contribution, he answered that he was not aware of any such minutes. 10. On 4 June 2009 A.N.’s representative presented for the first time minutes of a meeting of the company’s shareholders, which had allegedly taken place on 20 February 2007. The minutes showed that the applicant had admitted to not having paid for the totality of his shares and had pledged to pay within one month or lose his status as a shareholder in the company. 11. The applicant objected that the minutes in question had been forged. He argued, inter alia, that his first name had been spelt wrongly and that the signature was not his. He requested that an expert authentication of his signature be carried out. His request was not mentioned in the transcript of the hearing. 12. On 9 June 2009 the parties made their closing statements at the hearing before the Economic Court of Appeal. The applicant reiterated that the minutes of a shareholders’ meeting dated 20 February 2007 had been forged and requested that an expert authentication be carried out. A document containing his submissions was attached to the file. 13. On the same date the Economic Court of Appeal adopted a judgment in the case by which it upheld the appeal, reversed the judgment of the first-instance court and found in favour of A.N. In ruling on the case, the Court of Appeal relied entirely on the minutes of the shareholders’ meeting dated 20 February 2007. 14. Several days after the pronouncement of the judgment, the applicant had access to the case file and noted that the transcript of the hearing of 4 June 2009 did not contain a record of his request for an expert authentication of his signature. He made an official request to have the transcript corrected. However, on 17 June 2009 the Economic Court of Appeal rejected his request. 15. The applicant lodged an appeal on points of law with the Supreme Court of Justice claiming, inter alia, that the proceedings had been unfair because the Economic Court of Appeal had used as the main and sole piece of evidence in the ruling against him a forged document, namely the minutes of a shareholders’ meeting dated 20 February 2007. The Economic Court of Appeal had given decisive weight to that document in spite of his express statement that the signature on the document was not his. He had requested to have the document authenticated by an expert, but the court had rejected his request without giving any reasons. He stressed that A.N. had not relied on the minutes of 20 February 2007 either in his initial action or in his appeal against the judgment 14 March 2009. He had presented them for the first time during the fourth hearing before the Economic Court of Appeal. In support of his assertion that the minutes in question had been forged, the applicant submitted evidence that between 11 and 22 February 2007 he had been undergoing medical treatment in Israel and could not therefore have attended a shareholders’ meeting held on 20 February 2007. He presented documents issued by the Moldovan border authorities and Israeli stamps in his passport confirming his travel to Israel between the above-mentioned dates. He also reiterated his objection concerning the statute of limitations and urged the Supreme Court to quash the judgment of the Economic Court of Appeal and order a re-examination of the case. 16. In the proceedings before the Supreme Court of Justice, A.N. presented for the first time a copy of minutes of a meeting of the company’s shareholders which had allegedly taken place on 23 February 2007. In the new minutes the applicant was recorded as acknowledging that in the previous minutes dated 20 February 2007, the date had been wrongly indicated and that the correct date should have been 23 February 2007. 17. On 17 December 2009 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, upholding the judgment of the Economic Court of Appeal. It did not respond to the applicant’s argument that A.N.’s action was time-barred or to the contention that the Economic Court of Appeal’s judgment had been based on a forged document. Nor did the Supreme Court respond to the applicant’s argument that the Economic Court of Appeal had rejected without any reasons his request for an expert authentication of the minutes of 20 February 2007. Instead, relying on the minutes of 20 February 2007, the Supreme Court concluded that the applicant had not paid the totality of his shares in the company. The Supreme Court did not mention the new minutes dated 23 February 2007 presented by A.N. in the proceedings before it. 18. On an unspecified date the applicant lodged a criminal complaint against A.N., alleging that he had forged the company shareholders’ minutes dated 20 February 2007. In the course of the criminal proceedings, an expert from the National Forensic Centre presented his report dated 7 August 2010, in which he concluded that the signature on the minutes of the company shareholders’ meeting dated 20 February 2007 did not belong to the applicant. The criminal proceedings are pending.