The abolition of law in the process of examining a pending case violates the fair trial

JUDGMENT 

Topal v. the Republic of Moldova 03.07.2018 (no. 12257/06)

see here  

SUMMARY

The case concerned judicial proceedings relating to the pension entitlement of Mr Topal, a former President of the Gagauz Republic. During the proceedings, the People’s Assembly of Gagauzia set aside the local law (no. 36-XIX/II) on which Mr Topal was basing his claims. The applicant’s case was dismissed by the domestic courts on the grounds that there was no longer any basis for it.

The Court found that the retrospective setting aside of the local law had settled the substance of the ongoing dispute with final effect, making it pointless to continue the proceedings. In that connection the Court held that there had been no compelling grounds of general interest capable of justifying the setting aside of the law. The intervention by the People’s Assembly of Gagauzia during the proceedings had therefore not been justified for the purposes of Article 6 § 1 of the Convention.

PROVISION

Article 6 § 1

PRINCIPAL FACTS 

The applicant, Stepan Topal, is a Moldovan national who was born in 1938 and lives in Comrat
(Republic of Moldova). He was President of the Gagauz Republic (a region located in the south of the
Republic of Moldova) between 1991 and 1995.

In April 2003 Mr Topal, who considered that he was entitled to receive a personal pension under
local law no. 36-XIX/II, brought proceedings for recovery of his pension against the Executive
Committee and the People’s Assembly of Gagauzia. The law in question, which had been in force
since July 2001, provided that Mr Topal would receive a retirement pension equivalent to 75% of the
monthly salary of the Governor of Gagauzia.

In December 2003 the Comrat District Court referred the case to the Comrat Court of Appeal for a
preliminary ruling on the legality of the law. While those proceedings were pending the People’s
Assembly of Gagauzia set aside law no. 36-XIX/II with retrospective effect, on the grounds that it was
contrary to the national legislation on State social-insurance pensions. In consequence, the Court of
Appeal discontinued the proceedings for a preliminary ruling and the District Court dismissed
Mr Topal’s action as ill-founded.

THE DECISION OF THE COURT 

Article 6 § 1 (right to a fair hearing)

The Court reiterated that the principle of the rule of law and the notion of a fair trial enshrined in
Article 6 of the Convention precluded any interference by the legislature – other than on compelling
grounds of the general interest – with the administration of justice designed to influence the judicial
determination of a dispute. This applied also to local or regional assemblies with legislative powers,
like the People’s Assembly of Gagauzia in the present case.

The setting aside of local law no. 36-XIX/II had settled the substance of the ongoing dispute –
between Mr Topal and the Gagauzian authorities – with final and retrospective effect, making it
pointless to continue the proceedings. Furthermore, the setting aside of the law had purely and
simply endorsed the position of the Executive Committee of Gagauzia in the pending proceedings.
In accordance with its case-law, the Court therefore had to determine whether the setting aside of
the law had been based on compelling grounds of general interest. In the Government’s view, the
intervention by the People’s Assembly of Gagauzia had been justified by the need to set aside the
local law because it was incompatible with national legislation. However, the issue of the legality of
the law in question had been referred for a preliminary ruling to the Comrat Court of Appeal, which
had jurisdiction to rule on possible conflicts between the acts adopted by the Gagauzian authorities
and national legislation.

Hence, given the existence of a mechanism for assessing the legality of local
laws in Gagauzia, which had been set in motion in the present case, the Court was not persuaded by
the Government’s argument. Moreover, the Government had not referred to any other possible
compelling grounds of general interest that might have justified setting aside the local law in
question. Accordingly, the Court ruled that the intervention of the People’s Assembly of Gagauzia
could not be justified for the purposes of Article 6 § 1 of the Convention, and found a violation of
that provision.

Other articles

The Court found that Mr Topal’s complaints concerning the alleged lack of independence and
impartiality of the domestic courts (Article 6 § 1) and the right to an effective remedy (Article 13)
were manifestly ill-founded.

The Court also decided to strike out of the list the complaint concerning Article 1 of Protocol No. 1
(protection of property) to the Convention, noting that Mr Topal had not made any submissions on
the issue of whether the circumstances of the case had amounted to a violation of that Article.

Article 41 (just satisfaction)

The Court held that the Republic of Moldova was to pay Mr Topal 3,000 euros (EUR) in respect of non-pecuniary damage(echrcaselaw.com editing). 


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