CASE OF GUROV v. MOLDOVA
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
5. In 1994 the applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), according to which she paid an insurance premium in exchange for an annuity. 6. Since ASITO failed to pay the annuity at the term, the applicant brought a civil action against it, seeking the payment of the pension to date and requiring the company to abide by the contract. 7. On 5 October 2001, the Râşcani District Court found in favour of the applicant and ordered ASITO to pay the pension due and to resume the execution of the contract. 8. ASITO appealed against this judgment, asking inter alia for the cancellation of the contract concluded with the applicant in 1994 on the ground that the economic situation of the country had become worse and that the interest rate of the National Bank of Moldova had changed. 9. On 27 February 2002, the Chişinău Regional Court dismissed the appeal arguing that the contract of 1994 was legal and valid and therefore had to be upheld by the parties. ASITO lodged an appeal in cassation against this judgment. 10. In the meantime, on an unspecified date, the Prosecutor General lodged an “appeal in the interests of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding all such contracts and of setting a uniform practice for all the courts. 11. On 11 March 2002, the Plenary Supreme Court issued a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. It also ruled that its judgment had no retrospective effect on any already existing judgments and that it could not be used against the parties to those proceedings. 12. On 16 April 2002, a panel of the Court of Appeal composed of judges V.D. (president), T.D. and V.B., quashed the judgments of 5 October 2001 and 27 February 2002, and found in favour of ASITO. 13. After the delivery of the judgment, the applicant found out that the mandate of Judge V.D., who had presided at the hearing, had expired in 2000 and that he had been dismissed from the position of judge in July 2002. 14. Article 151 of the Constitution of the Soviet Socialist Republic of Moldova of 1989 provided as follows: The judges ...shall be elected by the Supreme Soviet for a term of office of ten years. 15. The Decision of the Supreme Soviet of the Soviet Socialist Republic of Moldova, No. 98-XII of 15 June 1990 provided: ... V.D. is appointed as a judge at the Supreme Court of Justice... 16. The Presidential Decree No. 91-94 of 27 July 2002, in so far as relevant, provided: ... V.D. is dismissed from the position of judge. ... 17. The relevant parts of the Code of Civil Procedure in force at the material time read as follows: Section 19. The grounds for challenging a judge A judge shall not be admitted to sit in a case and shall be challenged in the following cases: 1) if he or she participated in an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, registrar; 2) if he or she is personally interested, directly or indirectly, in the outcome of the proceedings or if there are other reasons for which his impartiality could be doubted; 3) if he, his spouse, his ascendants or descendants have any interest in the outcome of the proceedings...; 4) if his spouse... is a relative of one of the parties to the proceedings...; 5) if he is a tutor... of one of the parties to the proceedings. ... Section 162. Adjourning the hearing It is possible to request the adjournment of a hearing when one of the parties, a witness, an expert or an interpreter is absent, or when it is necessary to present new evidence or when there are other circumstances which render impossible the holding of the hearing. ... 18. On 12 June 2003 a new Code of Civil Procedure entered into force. Section 449, so far as relevant, reads as follows: “Grounds for revision Revision may be requested: ... k) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court....”