SECOND SECTION

DECISION

Application no. 17873/15 Andrei BELOBROV against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 1 December 2020 as a Committee composed of:

Branko Lubarda , President, Valeriu Griţco , Pauliine Koskelo , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above applications lodged on 9 April 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrei Belobrov , is a Moldovan national, who was born in 1969 and lives in Chişinău . He was represented before the Court by Mr A. Tighinean , a lawyer practising in Chişinău .

The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari .

The facts of the case, as submitted by the parties, may be summarised as follows.

In his capacity as chief executive officer of a limited liability company, the applicant concluded a contract with a German company concerning the sale of a machine-tool for the price of EUR 400,000 (four hundred thousand euros). According to the contract, the price was to be paid in several instalments, the last instalment being due after the shipment of the merchandise to the buyer. After having received two thirds of the price, a dispute concerning some defects of the respective machine-tool arose between the parties. The German counterpart requested a substantial discount but the applicant disagreed. As a result of the conflict, the applicant refused to ship the merchandise as provided for in the contract until the payment of the last instalment. Since the German counterpart refused to comply, the applicant sold the machine-tool to a third company for EUR 420,000. The German counterpart lodged a criminal complaint, arguing that it did not have money for the court fees in civil proceedings. Following criminal proceedings, the applicant was convicted for fraud and sentenced to three years’ imprisonment. The courts also ordered the applicant to repay the German counterpart the money received in accordance with the contract.

The final judgment in the criminal proceedings against the applicant was adopted by the Supreme Court of Justice on 27 May 2014. The date of handing to the applicant of that judgment is disputed between the parties: 6 August 2014 according to the Government and 15 October 2014 according to the applicant’s representative.

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 4 that he had been imprisoned for a debt. He also complained under Articles 5 and 6 that his detention and conviction had been unlawful and unfair because it took place after the expiry of the five years’ limitation period imposed by the Criminal Code.

THE LAW

The applicant complained that his detention had amounted to deprivation of his liberty merely on the ground of inability to fulfil a contractual obligation contrary to Article 1 of Protocol No. 4 to the Convention. He also complained that his detention and conviction had been contrary to Articles 5 and 6 of the Convention. The relevant Articles of the Convention read as follows:

Right to liberty and security

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

...”

Rights to a fair trial

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Prohibition of imprisonment for debt

“No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.”

The Government submitted that the applicant missed the six-month time-limit when lodging his application on 9 April 2015 and indicated to the fact that on 6 August 2014 the prison administration handed him a copy of the reasoned judgment of the Supreme Court of Justice of 27 May 2014. The Government presented a copy of that judgment with the applicant’s signature and the handwritten date of 6 August 2014 on its first page and with a handwritten inscription “received on 6 August 2014” followed by the applicant’s signature on a separate page.

The applicant’s representative disagreed with the Government and argued that a copy of the Supreme Court’s judgment of 27 May 2014 had been received by the applicant on 15 October 2014. He relied on a copy of that judgment which had been attached to the application form and which bore a signature and the date of 15 October 2014.

The Court reiterates that under Article 35 § 1 of the Convention an application must be introduced within six months of exhaustion of the last “effective remedy” that could be pursued in the respondent state, or, where there are no such remedies, from the date of the act or measure complained of, or knowledge thereof (see D.P. and J.C. v. the United Kingdom ( dec. ), no. 38719/97, 26 June 2001).

The Court further notes that the applicant’s representative did not contest the authenticity of the applicant’s signatures and of his handwritten inscriptions on the copies presented by the Government in support of their objection. Indeed those signatures bear resemblance to the signature applied by the applicant on his application form. At the same time the Court cannot but observe that the signature on the copy of the judgment relied upon by the applicant’s representative does not bear any resemblance to that applied by the applicant on the application form but rather appears to be that of the lawyer who represented the applicant in the proceedings before the Supreme Court, Mr A. Barbaros .

In such circumstances, the Court considers it established beyond reasonable doubt that the applicant received a copy of the judgment of the Supreme Court of Justice of 27 May 2014 on 6 August 2014 and not on 15 October 2014. T he Court notes that the applicant, who is represented, introduced the present application on 9 April 2015 and that there is nothing to suggest that he was hindered in any way by the authorities from introducing it earlier. Consequently, the application was lodged more than six months after the exhaustion of the last “effective remedy ”, and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 January 202 1 .

Hasan Bakırcı Branko Lubarda Deputy Registrar President