SECOND SECTION
CASE OF COVALENCO v. THE REPUBLIC OF MOLDOVA
(Application no. 72164/14)
 
 
 
JUDGMENT
 
Art 6 § 1 (civil) • Fair hearing • Fresh judgment on the merits by the Supreme Court • No oral hearing despite factual and credibility disputes • Decisive counter-argument left unanswered • Supreme Court’s reliance proprio motu on a new reason not argued by the parties and not a matter of dispute • Unfair trial
 
STRASBOURG
16 June 2020
 
FINAL
 
16/09/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Covalenco v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Valeriu Griţco,
 Egidijus Kūris,
 Ivana Jelić,
 Arnfinn Bårdsen,
 Darian Pavli,
 Saadet Yüksel, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the application (no. 72164/14) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Dumitru Covalenco (“the applicant”), on 28 October 2014;
the decision to give notice of the application to the Moldovan Government (“the Government”);
the parties’ observations;
Having deliberated in private on 19 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the reversal by the Supreme Court of two judgments in favour of the applicant which were adopted in civil proceedings by two inferior courts. The examination of the appeal on points of law by the Supreme Court of Justice took place without the participation of the parties and completely new arguments which were not a matter of debate between the parties before the lower courts served as a basis for the reversal. THE FACTS
1. The applicant was born in 1983 and lives in Chișinău. He was represented by Mr G. Ionaş, a lawyer practising in Chișinău. 2. The Government were represented by their Agent, Mr O. Rotari. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 13 July 2009 the applicant’s wife was driving his car and was involved in a car accident. As a result of the accident the car was severely damaged. 5. On the same date the applicant contacted his insurance company and informed it about the accident. It appears from the materials of the case file that the applicant had declared his wife as an authorised driver of the car for the purposes of insurance. 6. The applicant wrote many letters to the insurance company requesting to be paid the insurance indemnity, but to no avail. He also lodged numerous complaints with State regulatory bodies in the field of insurance but without any results because the insurance company did not reply to any of the letters. Instead, the insurance company lodged criminal complaints against the applicant, alleging that he intended to defraud it. As a result of such complaints a criminal investigation was conducted, in the course of which, in 2012, the representative of the insurance company admitted inter alia that the applicant’s damaged car was being kept by the insurance company and that the applicant’s wife was an authorised driver of the car. That information was not made available to the applicant until after the civil proceedings between him and the insurance company were over. It appears from the materials of the case file that the criminal investigation did not lead to the applicant’s indictment and the outcome is not known to the Court. 7. On 12 July 2012 the applicant lodged a civil action against the insurance company and claimed the payment of the insurance indemnity and default interest. 8. In a judgment of 2 April 2013 the Botanica District Court found that a proportion of more than 75% of the applicant’s car had been destroyed as a result of the accident and that it could not be repaired. Therefore, it ordered the insurance company to pay 20,858 euros (EUR) to the applicant, a sum consisting of the value of the car, less the 10% excess plus the default interest. 9. The insurance company appealed against the above judgment and argued that while the applicant’s wife was an authorised driver of the insured car, it was not her but the applicant who had been driving the car at the moment of the accident. Since the applicant had not passed his breath test immediately after the accident, the insurance company was entitled not to pay the insurance indemnity. Moreover, the insurance company argued that in ordering the payment of the full value of the car, the first instance court had failed to rule on who was to keep the damaged vehicle. 10. On 26 November 2013 the Chișinău Court of Appeal partly upheld the appeal lodged by the insurance company and ordered that the damaged vehicle be kept by the insurance company. The Court of Appeal dismissed the insurance company’s argument that the applicant had been driving the car. In so doing, the court made reference to a final judicial decision in parallel proceedings in which the police officer’s finding to the effect that the applicant’s wife had been driving the car at the moment of the accident was unsuccessfully contested. 11. The insurance company lodged an appeal on points of law in which it raised arguments which had not been raised previously. Firstly, it argued that the applicant had refused to present the damaged car and that it had not even seen pictures of the vehicle. Secondly, the insurance company questioned the manner in which the courts had determined the fact that the proportion of the car that had been damaged was more than 75% in the absence of any expert report. 12. In his written submissions in reply to the above application the applicant argued that immediately after the accident it had been the representatives of the insurance company that had taken the damaged car from the police station and kept it. The applicant argued that the insurance company was being dishonest when stating that it had not seen the damaged car and that that could be proved by the fact that it had never raised that argument either during the proceedings before the first instance court or in its appeal against the judgment of the first instance court. Moreover, the applicant argued that the insurance company had attached an expert’s report which it had requested concerning the technical state of the damaged car to its appeal application. That fact proved that the insurance company had access to the car and knew its whereabouts. 13. On 30 April 2014 the Supreme Court of Justice examined the case without the participation of the parties. It upheld the appeal on points of law, quashed the judgments of the lower courts and adopted a new judgment on the merits of the case, dismissing the applicant’s action against the insurance company. The Supreme Court found in the first place that the insurance policy issued by the insurance company did not contain the name of the applicant’s wife. Secondly, there was no evidence in the case file that the applicant had presented the insurance company with the damaged car or any documents confirming the damage. RELEVANT LEGAL FRAMEWORK
14. The relevant provisions of the Code of Civil Procedure as in force at the material time read as follows:
“Article 26. Adversarial character and procedural equality of participants
(1)  Civil legal proceedings shall be conducted in accordance with the principles of adversarial procedure and procedural equality of participants...
... (3)  The court which examines a case shall maintain its impartiality and objectivity and shall create conditions for the parties to the proceedings to be able exercise their rights and for the objective examination of the circumstances of the case... Article 444. The examination of the appeal on points of law
An appeal on points of law should be examined without the participation of the parties. The panel of five judges may decide to invite some of the parties or their representatives in order to decide on problems of lawfulness invoked in the appeal on points of law application.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15. The applicant complained that the proceedings before the Supreme Court had not been fair. He relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
Admissibility
16. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

17. The applicant argued inter alia that the proceedings before the Supreme Court had been unfair because that court had not examined the arguments from his written submissions and had not invited the parties to participate in the proceedings. In the applicant’s view, the decision of the Supreme Court was unreasoned and arbitrary because it relied solely on the false declarations made by the insurance company. 18. The Government submitted that during the examination of the appeal on points of law, the Supreme Court of Law had found that both the first and the second instance courts had incorrectly examined the case. Thus, after administering the evidence gathered by the lower courts, the Supreme Court had come to the conclusion that the applicant had not provided the insurance company with access to the damaged vehicle or with any documents concerning the damages caused to it as a result of the accident. Moreover, the Supreme Court had found that the insurance policy did not contain the name of the applicant’s wife.

Outcome for Article 6: violation