Viorel Topa, Victor Topa and Others v. The Republic of Moldova and 1 Other Application

Communicated on 16 May 2019
SECOND SECTION
Applications nos. 40339/11 and 26159/12
Viorel ŢOPA, Victor ŢOPA and Others against the Republic of Moldova
and Viorel ŢOPA, Victor ŢOPA and Vladimir MORARI against the
Republic of Moldova
lodged on 24 June 2011 and 18 April 2012 respectively
STATEMENT OF FACTS
A list of the applicants is set out in appendix 1.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised

as follows.
Application no. 40339/11 concerns alleged “raider attacks” on
shareholdings and shareholder rights which were allegedly owned
beneficially by Viorel Ţopa and Victor Ţopa. A “raider attack” refers to a
host of legal, semi-legal and illegal tactics, including forgery, corruption,
and intimidation, which are employed by raiders to “steal” companies from
their owners.
Application no. 26159/12 concerns criminal proceedings brought against
Viorel Ţopa, Victor Ţopa and Vladimir Morari after they made a public
statement about the first of the alleged “raider attacks”.
1. The alleged “raider attack” in 2010

Viorel Ţopa and Victor Ţopa were business partners. Prior to May 2010
they were beneficiaries of 35.2 per cent of the share capital in Victoriabank
(“the bank”), through shares either acquired by them directly or acquired by
associates with their financing. The remaining applicants in application
no. 40339/11 are the companies and individuals through which these shares
were held. On account of their share capital, Viorel Ţopa and Victor Ţopa
2 VIOREL ŢOPA, VICTOR ŢOPA AND OTHERS v. THE REPUBLIC OF MOLDOVA
AND VIOREL ŢOPA, VICTOR ŢOPA AND AND VLADIMIR MORARI
v. THE REPUBLIC OF MOLDOVA
together enjoyed 51.7 per cent of voting rights at the bank’s Annual General
Meeting (“AGM”).
The third significant shareholder in the bank was Victoria Invest Ltd., a
company controlled by VP. VP, one of Moldova’s richest men, is currently
Chairman of the ruling Democratic Party. He was a member of the
Parliament of Moldova in two terms from December 2010 to October 2013
and from December 2014 to July 2015, and served as First Deputy Speaker
of the Parliament of Moldova from December 2010 to February 2013.
OpenDemocracy describes him as “the most influential person in Moldova”, a
man who “controls nearly every government institution”.
Viorel Ţopa and Victor Ţopa had been business partners with VP when
the three men acquired their shares in the bank in 2006. At the time they
agreed to maintain an equal balance of shares between them. In or around
the beginning of 2010, Viorel Ţopa and Victor Ţopa entered into
negotiations with VP to terminate their relationship and interest in the bank.
However, at an AGM on 19 May 2010 they were informed that they were
no longer registered shareholders, either in the bank or in companies
holding shares in the bank. At that same meeting the new group of
controlling shareholders voted to pay themselves a dividend of
MDL 170,000,000 (approximately EUR 8,700,000).
Following the AGM on 19 May 2010, Viorel Ţopa and Victor Ţopa
discovered that five separate legal proceedings, brought by individuals and
companies which had sold shares in Victoriabank to persons or companies
acting on their behalf, had resulted in the rescission or declaration of
invalidity of those share sale agreements.
According to Viorel Ţopa and Victor Ţopa, after they were divested of
the bulk of their share capital and voting rights, VP controlled a voting
block of 58.3 per cent. At an extraordinary meeting of the bank’s
shareholders which took place on 20 August 2010, a new supervisory board
was elected. Six of its seven members, including VP, were nominated by
Victoria Invest Ltd. (the company controlled by VP).
(a) The five cases
Each of the five cases was heard at first instance by the District
Economic Court; at second instance by the Economic Court of Appeal; and
at third instance by the Economic Chamber of the Supreme Court.
The administrative details of the cases are set out in appendix 2.
(i) Case 1
By way of a notarised share sale agreement dated 25 June 2003, EA had
sold to OC 100 per cent of the capital shares in LR Uniune, a company
which owned a considerable portion of the shares in the bank. In 2005 OC
alienated twenty-five per cent of those shares to Victor Jantic, an associate
VIOREL ŢOPA, VICTOR ŢOPA AND OTHERS v. THE REPUBLIC OF MOLDOVA 3
of Viorel Ţopa and Victor Ţopa, and a further twenty-five per cent to AM.
The other fifty per cent were sold to MA (EA’s husband) in 2006.
LR Uniune was then split into two companies – Financiar Invest SRL and
Profinante SRL – with each obtaining fifty per cent of LR Uniune’s capital
and assets. Fifty per cent of Financiar Invest SRL’s shares were owned by
Victor Jantic. Both Financiar Invest SRL and Victor Jantic are applicants in
application no. 40339/11.1
In 2007 MA sold his shares in Profinante SRL to the husband of VP’s
secretary.
EA and her husband, MA, subsequently sought the nullity of the sale
agreement of 25 June 2003. They contended that it was void because the
share capital was part of their joint and indivisible property at the date of
transfer and MA did not consent to the alienation of his share. They further
contended that the price indicated in the contract of sale was false and had
not been paid. Finally, they argued that the legal acts subsequent to the
conclusion of the contract of sale should be annulled.
Both Financiar Invest SRL and Profinante SRL were named as
defendants to the action. Profinante SRL was represented by its Director at
the hearing and contested the plaintiff’s claim. Financiar Invest SRL did not
appear and was not represented. The court stated that the company had been
“legally summonsed”, that the summonses were sent to the addresses
indicated in the contested acts, and that no representative of the company
had appeared at the post office to receive the summons.
The District Economic Court found that the right of MA to his joint and
indivisible property had been violated as there were no documents showing
his consent to or his awareness of the sale of the shares by EA. OC had been
obliged to ask about his consent and her failure to act with due diligence
conflicted with the presumption of good faith. The court also considered
that the price indicated in the sale agreement was false and that no evidence
of payment had been submitted. It therefore found the sale agreement was
void, as was the reorganisation of LR Uniune by the establishment of
Financiar Invest SRL, and ordered the transfer to the plaintiffs of the
157,024 shares issued by Victoriabank which were held by Financiar Invest
SRL. The court found, however, that the reorganisation of LR Uniune by
the establishment of Profinante SRL did not violate the plaintiff’s rights as
they had acquired one hundred per cent of the capital share of that company.
Victor Jantic, AM and Financiar Invest SRL appealed on the following
grounds. First of all, they contended that the Economic Courts did not have
jurisdiction to examine the case, as their competence was expressly limited
to the examination of cases between a shareholder and a joint stock
1. Although AM was party to the domestic proceedings he is not a party to application

no. 40339/11.
company, or between a joint stock company and members of another

company, resulting from the economic activity of the joint stock company,
and the case at hand did not result from the economic activity of any
company. Secondly, the defendants complained that they were not legally
summonsed and were not notified of the date and time of the hearing, and
that the examination of the case in their absence deprived them of the
possibility to avail themselves of their procedural rights in breach of the
right to a fair trial guaranteed by Article 20 of the Constitution of the
Republic of Moldova and Article 6 of the Convention. In particular, they
were deprived of the opportunity to argue that the plaintiffs had instituted
proceedings after the expiry of the relevant limitation period. Thirdly, they
pointed to MA’s acquisition of shares in LR Uniune in 2006 as evidence of
his consent to EA’s sale of the shares in 2003. Fourthly, they contended that
communication by a seller (EA) of false information regarding the share
price could not serve as a ground to declare a contract of sale void,
especially where the seller’s claims were wholly unsupported by evidence.
Fifthly, the defendants argued that there had been a de facto expropriation
of their property in violation of Article 1 of Protocol No. 1 to the
Convention. Finally, they challenged the order that 157,024 shares in
Victoriabank be transferred to the plaintiffs on the basis that they had never
owned shares in the bank, only in LR Uniune.
The Appeal Court dismissed the appeal. It reiterated the findings of the
lower court and insofar as it expressly considered the grounds raised by the
defendants, it concluded that they were “groundless”.
The defendants appealed to the Supreme Court, invoking similar grounds
to those raised before the Appeal Court. In addition, they argued that the
principle of random distribution of cases had been violated. However, the
Economic Chamber of the Supreme Court declared their complaints
inadmissible, considering them to be “unfounded”.
(ii) Case 2
Victoria Asiguraru SRL was an insurance company which held
124,224 shares in Victoriabank (a 3.88 per cent shareholding). At the
beginning of 2007, legal ownership of the company was divided equally
between VM (who was VP’s sister), Stela Corcodel and Vladimir Morari.
Stela Corcodel and Vladimir Morari are associates of Viorel Ţopa and
Victor Ţopa and both are party to application no. 40339/11.
On 3 January 2007 VM sold fifty per cent of the registered capital of
Victoria Asiguraru SRL to Stela Corcodel and Vladimir Morari. Clause 5 of
the sale contract – which had been notarised – stated that:
“The “Seller” declared: that at the moment of the contract conclusion the sold
“share” is free from any material or legal vices: is not seized, pledged, is not the
object of a claim, there are no third parties that can raise any claims regarding it (the
husband, [EM], verbally gave his consent to the conclusion of the contract).”
The plaintiff, EM (who is the husband of VM), subsequently brought
proceedings against Victoria Asiguraru SRL, VM, Stela Corcodel and
Vladimir Morari. EM argued that on 3 January 2007 VM had sold over
fifty per cent of the share capital in the defendant company to Stela
Corcodel and Vladimir Morari without his permission. He therefore asked
the District Economic Court to annul the sale agreement and reinstate the
parties.
According to the judgment of the District Economic Court, the defendant
company, Stela Corcodel and Vladimir Morari were legally summonsed but
refused to accept the summonses. The defendant VM was present at the
hearing. She did not present any arguments and confirmed her husband’s
claim.
The court considered the plaintiff’s claim to be well-founded as EM and
VM were legally married at the date of the sale; although VM was
registered as sole owner of the shares, both spouses had rightful ownership
of them; EM did not consent to the sale; and the defendants should have
been aware of this fact as they were not presented with his written consent.
The court declared the contract null and void and ordered that the shares be
returned to VM. As VM asserted that the price of the contract was never
paid, the court further held that Stela Corcodel and Vladimir Morari could
not claim restitution of the transaction price.
Stela Corcodel filed an appeal, supported by Vladimir Morari. However,
the appellate court considered that the first instance court had examined all
factual and legal circumstances of the case and correctly reached the
conclusion that the plaintiff’s claim was well-founded. It therefore
dismissed the appeal.
The defendants appealed to the Supreme Court on the following grounds.
First of all, they submitted that the economic courts did not have jurisdiction
to examine the case as the litigation did not derive from the economic
activity of Victoria Asiguraru SRL and it was not litigation between
shareholders of the company. Secondly, they argued that they had not been
legally summonsed and that there had been a violation of the legal
provisions concerning the delivery of the case material to them. Thirdly,
they contended that the lower courts’ finding that Stela Corcodel and
Vladimir Morari should have known that EM did not consent to the sale of
the shares was unfounded, since under domestic law the consent of either a
spouse or a co-owner to a sale of goods was presumed and, in any event, the
contract stipulated that EM had given his oral consent to the transaction.
Fourthly, the contract of sale contained a payment clause and the first
instance court should not have accepted the plaintiff’s allegation of
non-payment based only on the oral testimony of his wife.
The Economic Chamber of the Supreme Court dismissed the appeal.

(iii) Case 3
On 3 October 2006 Angela Nastase, an associate of Viorel Ţopa and
Victor Ţopa and one of the applicants in application no. 40339/11, had
acquired shares in AVB Prim SRL, a company holding 184,215 shares in
the bank (a 5.76 per cent shareholding), from Investments and Business Ltd.
Paragraph 4 of the sale agreement – which was authorised by a notary –
stated that the sale price had been fully paid prior to the signing of the
agreement.
Investments and Business Ltd. was later dissolved, but by a debt transfer
agreement dated 10 April 2007 it transferred its rights originating from the
3 October 2006 sale agreement to Financial Investments Corporation Ltd., a
company controlled by VP.
Financial Investments Corporation Ltd. subsequently brought
proceedings against Angela Nastase and AVB Prim SRL requesting the
annulment of the share sale agreement due to the non-fulfilment by the
buyer of the obligation to pay the purchase price.
In its judgment, the District Economic Court noted that the defendants,
without justification, did not attend the hearing. It proceeded to uphold the
plaintiff’s claim, finding that the provision in paragraph 4 of the agreement
was not sufficient evidence of payment. Rather, it held that the method of
payment also had to be proved through a separate document. As a result, it
annulled the sale agreement and ordered that Financial Investments
Corporation Ltd. be registered as sole shareholder of AVB Prim SRL.
Angela Nastase appealed on the following grounds. First of all, she
argued that the first instance court had examined the case in her absence,
even though the place, date and hour of the hearing had not been
communicated to her. She had therefore been deprived of a fair trial in
breach of Article 20 of the Constitution of the Republic of Moldova and
Article 6 of the Convention. Secondly, she contended that the economic
courts had not been competent to hear the case as it did not concern the
economic activity of a company and was not between shareholders. Thirdly,
domestic law required the plaintiff to submit evidence that notice had been
given to her to rescind the sale agreement and its failure to do so would
have constituted reason for rejection of the complaint. Fourthly, according
to domestic law, the express acceptance in paragraph 4 of the sale
agreement that payment had taken place was definitive proof of payment
and the buyer was not obliged to prove payment again. Fifthly, she argued
that the transfer agreement of 10 April 2007 had been null and void, since at
the date of its conclusion Investments and Business Ltd. had no rights to
transfer and, in any event, it had not been authenticated by a notary. Finally,
she submitted that there had been a breach of her right to property
guaranteed both by Article 46 of the Constitution of the Republic of

Moldova and Article 1 of Protocol No. 1 to the Convention.
The Economic Chamber of the Court of Appeal dismissed the appeal, It
noted that “no evidence exists to confirm that Angela Nastase paid the price
of the agreement”, and that there was no violation of Article 1 of
Protocol No. 1 since the appellants had acquired the property illicitly. It
further found that there had been no breach of Article 6 as the appellant had
participated fully in the appeal proceedings.
Angela Nastase appealed to the Supreme Court. In addition to the
grounds raised before the appellate court, she observed that in a decision of
12 October 2009 the first instance court admitted the plaintiff’s application
for a summons and set a hearing date without the plaintiff having paid the
court fee. Instead, it postponed payment of the court fee to 11 December
2009 without having obtained any evidence of the plaintiff’s financial
situation. The first hearing had taken place on 11 December 2009, but
receipts showed that the court fee was not paid until 4 March 2010.
Angela Nastase therefore argued that the case had been admitted contrary to
the Civil Procedure Code (that is, without either proof of payment of the
court fee or proof of inability to pay the fee) and that there had accordingly
been a breach of her rights under Article 6 of the Convention.
Angela Nastase further contended that the first instance court had not
followed the rules set down in the Civil Procedure Code for the
summonsing of defendants. Finally, she argued that there had been a
violation of the principle of the random distribution of cases. Together with
cases 1, 4 and 5, the case at hand had significant financial consequences, yet
of the twelve judges appointed to the District Economic Courts, these cases
were assigned to three (Judges Namaşco, Rotari and Plugari) whose
professional activity and reputation had been called into question by public
scandals concerning illegal dispossession through deregistration. Moreover,
a comparison of the dates on which these four cases were received for
examination and their case file numbers, which were issued in chronological
order, showed that the judges of the District Economic Court had admitted
1741 cases for examination in the course of 11 working days. On one single
day during this period the court appeared to have admitted 518 cases for
examination – a feat which Angela Nastase contended was “impossible”.
The Supreme Court dismissed the appeal. It found that the economic
courts had competence to hear cases between shareholders and, in any
event, Angela Nastase had not asked for the case to be re-examined by the
common law court. It further held that Angela Nastase had been properly
summonsed; that there had been no violation of the principle of the random
distribution of cases; that the non-execution of the sales agreement had been
proved before both the first instance court and the Court of Appeal; that the
transfer agreement of 10 April 2007 did not have to be authenticated by a
notary because it did not address the rights over the shares of AVB Prim
SRL; and finally, that there had been no breach of Article 1 of
Protocol No. 1 since Angela Nastase had not executed the obligations in the
sale agreement.
(iv) Case 4
GPR was the owner of 129,194 shares in Victoriabank. The sole
shareholder of Provileg Invest SRL was Inna Ilias, an associate of
Viorel Ţopa and Victor Ţopa. Both Provileg Invest SRL and Inna Ilias are
party to application no. 40339/11.
On 15 August 2007 there was a meeting of the shareholders of Provileg
Invest SRL, at which GPR was represented by Vladimir Morari, to whom
she had given power of attorney. At that meeting she transferred her shares
in the bank to Provileg Invest SRL (which then held four per cent of shares
in the bank); became a shareholder in Provileg Invest SRL; and sold her
share capital in Provileg Invest SRL to Inna Ilias. Paragraph 5 of the sale
agreement stated that Vladimir Morari, as the representative of GPR, had
outlined the rights of her husband and co-owner (VPR) in relation to the
transaction and indicated that he had agreed verbally to the conclusion of
the agreement.
GPR and VPR subsequently commenced proceedings against Inna Ilias
in the District Economic Court, arguing that the sale agreement of
15 August 2007 was void because VPR had not consented to the sale.
According to the decision of the District Economic Court, neither Inna Ilias
nor Provileg Invest SRL was present at the hearing, despite having been
legally summonsed. In their absence, the court found that the agreement was
void for lack of spousal consent. It further held it to be void due to the fact
that in signing it Vladimir Morari had acted outside the limits of the power
of attorney. The power of attorney had only authorised him to carry out
actions pertaining to the alienation of shares in Victoriabank and did not
cover the alienation itself. The Court rescinded the sale agreement and
ordered that the shares in the bank which were held by Provileg Invest SRL
be re-registered in GPR’s name. Finally, the court considered it established
that the contract was not executed as the sale price had not been paid to
GPR.
Inna Ilias and Provileg Invest SRL appealed against that decision. They
argued, inter alia, that the first instance court had misapplied domestic law
relating to spousal consent; that there were no limitations on the legal
powers held by Vladimir Morari pursuant to the power of attorney; that they
had not been legally summonsed; that there had been a breach of their rights
under Article 6 and Article 1 of Protocol No. 1 to the Convention; and that
the economic courts were not competent to examine litigation that did not
concern the economic activity of a company and which was not between
shareholders (VPR being only the spouse of a shareholder).
The appellate court rejected the appeal, finding that the first instance
court had ruled correctly in annulling the legal acts.
The appellants appealed to the Supreme Court. In addition to the grounds
raised before the Court of Appeal, they contended that there had been a
breach of the principle of random case distribution. However, the Supreme
Court held all their grounds of appeal to be unfounded.
(v) Case 5
Iurie Cobuscean, an associate of Viorel Ţopa and Victor Ţopa, was the
sole shareholder in Maxim Profit Invest SRL. Both Iurie Cobuscean and
Maxim Profit Invest SRL are party to application no. 40339/11.
At a General Shareholders’ Meeting on 15 August 2007, VT transferred
78,970 shares in Victoriabank to Maxim Profit Invest SRL and was
accepted as a second shareholder. VT was not present at that meeting but
was represented by Vladimir Morari, acting pursuant to a power of attorney.
On the same date, by a notarised contract of sale Iurie Cobuscean purchased
VT’s share in Maxim Profit Invest SRL and VT was accordingly removed
from the list of shareholders.
At a General Shareholders’ Meeting on 20 September 2007 OT
transferred 48,951 shares in Victoriabank to Maxim Profit Invest SRL and
was accepted as a shareholder in Maxim Profit Invest SRL. By a notarised
contract of sale dated 18 October 2007 he sold his share in Maxim Profit
Invest SRL to Iurie Cobuscean and was accordingly removed from the list
of shareholders. Like VT, he was represented in these transactions by
Vladimir Morari, acting pursuant to a power of attorney. In both powers of
attorney Vladimir Morari was authorised to represent the principals in
respect of acts related to the alienation of their shares in the bank.
As a consequence of these two transactions, Maxim Profit Invest SRL
held four per cent of shares in Victoriabank.
VT and OT subsequently petitioned the District Economic Court to
annul, inter alia, the decisions of 15 August 2007 and 20 September 2007
on the basis that they had been concluded in violation of the limits of the
power of attorney given to Vladimir Morari, since he was only given power
to represent them in acts relating to the alienation of their shares and not in
the actual alienation of those shares. They further contended that the prices
recorded in the sales agreements were false and had not, in any event, been
paid.
Although the court’s decision indicated that Iurie Cobuscean and Maxim
Profit Invest SRL had been properly summonsed, it noted that they did not
attend the hearing. The court upheld the plaintiffs’ claims, which it
considered well-founded, and ordered the return of the shares in

Victoriabank to VT and OT.
Iurie Cobuscean and Maxim Profit Invest SRL appealed to the Court of
Appeal, arguing that the District Economic Court did not have jurisdiction
to hear the case since it was not related to the economic activity of Maxim
Profit Invest SRL and it was not a dispute between shareholders as the
plaintiffs were no longer shareholders when they filed their complaint. They
further argued that the first instance court should not have accepted the case
for trial as the plaintiffs had neither paid the court fee nor provided proof of
impecuniosity; that it tried the case too quickly to allow the legal
summonsing of the defendants and the observance of their procedural rights;
that it based its judgment on documents attached to the case file which were
not properly authenticated; and that it did not order the reimbursement of
the sums paid pursuant to the annulled sales agreements. They further
contended that there had been a breach of their rights under Article 6 of the
Convention and under Article 1 of Protocol No. 1.
The Court of Appeal dismissed the appeal and upheld the judgment of
the first instance court. With regard to the appellants’ Convention
arguments, it found that there had been no breach of Article 6 as they had
participated in the appellate proceedings and were able to present their case
in “equitable conditions”; and that there had been no breach of Article 1 of
Protocol No. 1 since the appellants’ assets had been acquired without
paying the purchase price, as was required by domestic law.
The appellants appealed to the Supreme Court. In addition to the grounds
raised before the Court of Appeal, they contended that there had been a
violation of the principle of random case distribution as the evidence
“clearly proved” that the cases were “distributed deliberately”. They further
submitted that the actions filed by the plaintiffs had been filed much later
than the date specified therein. However, the Economic Chamber of the
Supreme Court dismissed their appeal.
(b) Viorel Ţopa and Victor Ţopa’s concerns about the five cases
According to Viorel Ţopa and Victor Ţopa, there were a number of
irregularities in the five cases.
(i) The court register
The court register appeared to have been tampered with. The court
register of the District Economic Court is a hand-written ledger of cases in
which information is inserted chronologically. New cases are assigned a
chronological number. In respect of cases 1, 2, 4 and 5 there were signs of
re-touching. The reference to case 3 was inserted at the bottom of one page
of the register and the case at the top of the following page was assigned the
same chronological number. Moreover, in each of the cases both the date of
execution of the power of attorney and the date of payment of the court fees
was much closer to the date of the District Economic Court’s substantive
determinations than the date of entry in the court register. In fact, in four of
the five cases the date of execution of the power of attorney post-dated the
official date of the hearing of the case.
It is the belief of Viorel Ţopa and Victor Ţopa that the entries in the
register were fabricated to conceal the true date on which the cases were
actually issued and to suggest that the cases had been randomly allocated.
(ii) Concealment of the proceedings before the first instance court
Viorel Ţopa and Victor Ţopa point to a series of irregularities which they
believe had as their primary purpose the concealment of the raider attack
prior to the 2010 AGM and which prevented them from frustrating the
attack by seeking relief before the civil courts.
The applicants who were defendants in the five cases state that there was
no pre-action notification of the proceedings and that they did not receive
the final hearing summons. In cases 1, 3, 4 and 5 records show that the
summonses were “served” on 11 March 2010 and returned “undelivered” on
19 March 2010, the date the cases were determined. Section 108 of the
Government’s Decision No. 798 of 18 June 2002 provided that if it was not
possible to hand mail to a recipient it had to be held at the post office for (in
the case of special mail, such as a summons) seven days, after which it was
to be returned. It was therefore practically impossible for these summonses
to have been sent and returned within eight days. Furthermore, Article 108
of the Civil Code required the president of the court to order the public
summoning of a defendant if he or she cannot otherwise be found, despite
all reasonable efforts; however, there is no evidence to suggest that this
procedure was followed in any of these four cases.
In case 2 the summons was returned with a post office certificate stating
that the defendants refused to accept it. However, a certificate from
Vladimir Morari’s local post office indicated that no correspondence was
received in his name and that the signatures on the certificate in the court
file, allegedly coming from that post office, did not belong either to the
postman or to the head of the post office. Viorel Ţopa and Victor Ţopa
believe that the earlier hearing date in case 2 meant that there was
insufficient time to invoke the seven-day rule as justification for the return
of the summons.
The applicants who were defendants in the five cases further claim that
they were not informed of the judgments delivered by the District Economic
Courts, in violation of Article 259 of the Civil Procedure Code.
(iii) The principle of the random allocation of cases

There was a breach of the rule on the random allocation of cases. The
principle of random allocation of cases is contained in Article 6 of the Law
on Judicial Organisation No. 514-XIII of 7 July 1995 (as amended).
Articles 27 and 39 of that law require the Presidents of the Courts to
organise the random distribution of cases for examination by judges.
However, despite the fact that there were ten judges of the Economic Court
of Appeal and ten judges on the Economic Panel of the Supreme Court (and
forty-nine in total, who can and do sit on appeals from the Economic
Courts), the Court of Appeal and Supreme Court panels were nearly
identical in each of the five cases (see appendix 2).
The defendants in the five cases subsequently raised this issue before the
Supreme Council of Magistracy, which stated in reply that Judge Namasco
had been reminded of the necessity of “strict compliance with the legal
framework regarding the random distribution of cases”.
(iv) The jurisdiction of the Economic Courts
Viorel Ţopa and Victor Ţopa contend that in each of the five cases the
District Economic Court (and the economic chambers of the Court of
Appeal and Supreme Court) had no legal jurisdiction in respect of the
plaintiffs’ claims. Pursuant to Article 29(1)(b) of the Civil Procedure Code,
the economic courts have jurisdiction in cases between a shareholder and a
joint stock company, and between members of other companies and a joint
stock company, which results from the economic activity of the company.
In the five cases, the plaintiffs were not shareholders as they had sold their
shares in the companies.
(v) Distortion and misapplication of substantive law
The three principal arguments invoked by the plaintiffs in the five cases
were “the spousal consent argument”, “the false price argument” and “the
non-payment argument”.
With regard to the spousal consent argument, Viorel Ţopa and Victor
Ţopa believe that the approach taken in the five cases departed from
Moldovan law and was “manifestly erroneous and perverse” as the courts
reversed the burden of proof set out in Article 118 of the Civil Code (the
obligation to prove facts in court). Even though there was no contemporary
or independent evidence that the sales had been made without the consent of
the spouses, and there was no evidence that the purchasers ought to have
known of this lack of consent, the courts nevertheless required the
purchasers to prove that they could not have known of the alleged lack of
consent. This approach was entirely at odds with a commentary in the
Judicial Handbook – written by Judge Rotari, who sat in two of the five
cases – which states that there is a “presumption of common consent” by
co-owners when disposing of property and a contract can only be held to be

void if the purchaser’s bad faith is proved. Furthermore, on 26 January 2011
a differently constituted Supreme Court held in Petrache v. Petrache
and Others (Judgment no. 2ra-151/2011) that there was a significant burden
on a plaintiff seeking to establish that a person ought to have known that
property was jointly owned at the time of transfer and that the co-owner was
opposed to the sale. In this regard, the court expressly found that it was
insufficient for a plaintiff to rely on statements by witnesses with an interest
in the outcome and/or a connection to themselves.
According to Viorel Ţopa and Victor Ţopa, the courts’ findings with
regard to the false price arguments were also “gross distortions” of
Moldovan law, since Article 50(4) of the Law of Public Notaries provided
that liability for the communication of a false price should be borne by the
“guilty party”. Although the sellers had been the “guilty party” (as it was
they who obtained a tax advantage by communicating a false price), in the
five cases they were able to benefit from their own wrongdoing. Moreover,
in cases 1, 4 and 5 there were addendums to the sale agreements which
stipulated a substantial price in addition to the initial price. In cases 4 and 5
the appellate courts rejected the defendants’ reliance on these addendums,
considering them to be an “admission” by the defendants of the existence of
a “false price”. However, in case 1, an identically constituted appeal court
found that a materially identical addendum in the sale agreement between
Profinante SRL and the husband of VP’s secretary rendered the statement of
a false price in the agreement itself “irrelevant”.
In relation to the non-payment argument, the notarised sale agreements
contained declarations by the plaintiffs that the price had been paid and the
courts did not rely on any evidence to the contrary. Consequently, Viorel
Ţopa and Victor Ţopa consider that the judgments of the domestic courts
violated at least three provisions of domestic law: Article 3(3) of the Law on
Notaries, which contains a presumption of validity of notarised acts;
Article 643(3) of the Civil Code, which places the burden of proving
non-performance on the person claiming it; and Article 118(1) of the Civil
Code, which obliges the parties to prove the facts they assert.
In addition, Viorel Ţopa and Victor Ţopa consider it unusual that in
cases 1 and 5 the courts ordered that the defendants’ shares in Victoriabank
be registered in the plaintiffs’ names, even though the plaintiffs had never
owned shares in the bank.
(c) Subsequent developments
Viorel Ţopa and Victor Ţopa notified the Prosecutor General’s Office,
asking it to investigate the case and identify the perpetrators. The
investigation was assigned to a prosecutor who concluded that there was
insufficient evidence to initiate a case.
Legal proceedings in the United Kingdom and Cyprus disclosed that all
the shares in Victoriabank which were the subject of the five cases were
eventually transferred to a company called OTIV Prim Financial BV
(Holland). The sole shareholder of this company is Finbar Victoria Limited
(Cyprus), a company which is beneficially owned by VP.
On 9 November 2012 the applicants learned that on 11 and 12 October
2012 the State Chamber of Registration had modified the register of legal
entities so as to register new legal owners of Maxim Profit Invest SRL,
Provileg Invest SRL and Financiar Invest SRL (which were previously
owned by Iurie Cobuscan, Victor Jantic and Inna Ilias). These modifications
were based on what the applicants claim were forged minutes of the three
companies’ General Shareholders’ Meetings, which claimed to have
accepted a capital increase so that the new shareholders achieved 94.6% of
each of the three companies’ capital. Four powers of attorney were attached
– which the applicants also claim were forgeries – which authorised three
Ukrainian nationals to represent Iurie Cobuscan, Victor Jantic and Inna Ilias
at the meetings. The three applicants claim that they did not sign the powers
of attorney. They sought to challenge the decisions of the State Chamber of
Registration and asked the court to annul the forged minutes and powers of
attorney. However, their applications were returned by the court on the basis
that they did not contain fax numbers and emails for the plaintiffs.
2. The alleged “raider attacks” in 2011

Viorel Ţopa and Victor Ţopa assert that they were the beneficial owners
of companies which had shareholdings in Victoriabank SA, ASITO SA and
Banca de Economii SA. They claim that they were divested of these
shareholdings in three separate cases. In each of these cases a company
claimed that it had made a loan of several million dollars to an individual
and that the company or companies owned by Viorel Ţopa and/or
Victor Ţopa had guaranteed that loan by means of its/their shares in either
Victoriabank SA, ASITO SA or Banca de Economii SA. As the lenders
claimed that the loans had not been repaid, the domestic courts transferred
the shares used to guarantee the loans to those companies. Although each of
the relevant orders was annulled on appeal, the orders annulling the
decisions were later quashed.
Viorel Ţopa and Victor Ţopa claim that the loan agreements were
forgeries; that they had never had any dealings with the plaintiff companies;
and that they were notified of neither the proceedings nor the courts’
decisions.
3. The criminal proceedings

According to Viorel Ţopa and Victor Ţopa, upon discovering that they
had been divested of the bulk of their share capital and voting rights in
Victoriabank, they informed VP that they would tell the public about the
theft. In response, he informed them that if they did so he would bring
criminal charges against them.
On 11 August 2010 Viorel Ţopa and Victor Ţopa held a press conference
together with other individuals who claimed to have been subject to
unlawful action by VP. They publicly accused VP of perpetrating the raider
attack against their shares in Victoriabank.
The same day, VP held his own press conference in which he stated that
the attack on him was “conducted by persons who are under criminal
investigations”.
Criminal proceedings were subsequently brought against Viorel Ţopa,
Victor Ţopa and Vladimir Morari.
(a) Victor Ţopa and Vladimir Morari
Victor Ţopa and Vladimir Morari were indicted on a charge of blackmail
relating to the acquisition of shares in Victoriabank in 2007. The alleged
blackmail and the resulting share transactions were carried out in Moscow,
Russia.
The shares had been acquired from GPR, VT and MA for the benefit of
Viorel Ţopa, Victor Ţopa and VP, who were business partners at the time.
Vladimir Morari had personally executed the share transactions under
powers of attorney entered into by all relevant individuals, including the
sellers. These transactions were subsequently voided by the District
Economic Courts in cases 1, 4 and 5 (being three of the five cases forming
the basis of the alleged “raider attack” in 2010). In those proceedings the
sellers had sought – and been granted – the return of the shares on the basis
that their spouses had not consented to the sales. There had been no
suggestion in the proceedings before the District Economic Courts that the
shares had been acquired as a result of blackmail.
The criminal investigation into Victor Ţopa and Vladimir Morari was
initiated by the General Prosecutor and conducted by his office. On
11 November 2010 the General Prosecutor transferred the case to the Center
for Combating Economic Crimes and Corruption (“the CCECC”) and on
15 November 2010 a Superior Officer of criminal investigations at the
CCECC issued a report for the Anti-Corruption Prosecutor stating that the
criminal investigation, which had been ongoing since 12 June 2010, had
found that Victor Ţopa and Vladimir Morari had “committed the crime of
blackmail”. The report therefore recommended the termination of the
criminal investigation and the referral of the case to the criminal court for
trial.
The CCECC indicted and charged Victor Ţopa and Vladimir Morari with
offences under Article 189 of the Moldovan Criminal Code. They were
indicted before the Buiucani District Court.
On 2 December 2010 the Chairman of the Buiucani District Court
assigned the case to Judge Plamadeala. The Chairman stated that in
accordance with the established procedure, the case should have been
distributed to Judge Girbu, but as she was on sick leave taking care of her
minor child the case had to be assigned to another judge.
At a preliminary hearing on 28 January 2011 Victor Ţopa and
Vladimir Morari were informed that they had been charged with an offence
under Article 189(6) of the Criminal Code, which applies where the offence
of blackmail has been committed “on an especially large scale”. In such a
case, the offence is punishable by a sentence of ten to fifteen years in prison.
During a hearing on 23 February 2011 the lawyer for Victor Ţopa and
Vladimir Morari requested the transfer of the case from the Buiucani
District Court. As the crime had allegedly been carried out in Russia,
Article 40 (3) of the Criminal Procedure Code provided that the competent
courts were the courts in the districts in which the defendants were last
domiciled. In the case of the second and third applicants, these were –
respectively – the Chisinau Centre District Court and the Orhei District
Court. The Buiucani District Court rejected the transfer request.
On 5 October 2011 Judge Plamadeala made an order for the arrest and
detention of Victor Ţopa and Vladimir Morari and listed a hearing for
18 October 2011. An appeal against this order was listed to be heard by the
Court of Appeal on 13 October but was subsequently rescheduled for
19 October. As a consequence, the prosecutor indicated that the hearing
before the District Court had been delayed until 21 October 2011. However,
at the appeal hearing on 19 October 2011 Victor Ţopa and
Vladimir Morari’s lawyer was informed by the Chairman of the Appeal
Panel that the Buiucani District Court had listed the hearing at 12.00 noon
the same day. When the Victor Ţopa and Vladimir Morari’s lawyer went to
the courthouse at noon, it was locked and empty.
According to the court file, a hearing began in the Buiucani District
Court at 2.15 p.m. on 19 October 2011. The court record indicated that
Victor Ţopa and Vladimir Morari had lodged a request asking the court to
examine the case in their absence, and that their lawyer was absent for
“unknown reasons”, despite having been legally summonsed. The case
proceeded in their absence and they were convicted and sentenced to ten
years’ imprisonment in a closed regime.
Victor Ţopa and Vladimir Morari appealed to the Court of Appeal. On
14 September 2012 the Court of Appeal allowed the appeal, re-examined
the case and pronounced a new judgment. By a majority, it found Victor
Ţopa and Vladimir Morari guilty of the offence charged and sentenced them
to seven years’ imprisonment in a closed regime. A dissenting judge issued

a separate opinion in which he indicated that he would have quashed the
conviction and acquitted them. The reasons he would have done so were
that: the case was heard in the absence of their lawyer; the first instance
court determined the case in the absence of the case file, which had still
been at the Chisinau Court of Appeal on 19 October 2011; and the offence
of blackmail had not been proven. With regard to the latter reason, the judge
noted that the supposed injured parties had filed complaints three years after
the alleged injury occurred, no mention was made of threats of physical or
psychological violence in the civil proceedings, and the defence had
submitted evidence that the testimony of GPR, and in particular her claim to
have been apprehended by law enforcement agencies in Moscow, was not
true.
Both the prosecutor and the defendants appealed to the Supreme Court.
The prosecutor appealed against sentence, arguing that the punishment fixed
by the appellate court had been too lenient.
On 6 February 2013 the Supreme Court dismissed Victor Ţopa and
Vladimir Morari’s appeal. It held that the retrial in the appeal court took
place in accordance with the rules for the examination of cases in first
instance courts; it pronounced its decision in strict conformity with all legal
requirements; it analysed both the evidence submitted before the court of
first instance and additional evidence submitted on appeal; and it adopted a
legal and well-founded decision. Furthermore, the Supreme Court indicated
that, after analysing the evidence, it considered that the defendants’ guilt
had been proven in full by “conclusive, pertinent, veracious and useful
evidence”. Finally, it noted that insofar as the defendants complained about
the first instance court considering the case in their absence, in the absence
of their lawyer and in the absence of the case file, these defects had been
corrected on appeal by the retrial of the case in conformity with the rules of
the first instance court. The defendants could not, therefore, be considered
to have had their right to a fair trial violated.
The prosecutor’s appeal against sentence was dismissed as “unfounded”.
(b) Viorel Ţopa
The criminal proceedings against Viorel Ţopa concerned an incident
which took place in 2001 when he was Chairman of Banca de Economii. A
loan to Air Moldova had been guaranteed in part by a pledge of
USD 400,000 given to the bank by CB Sparks Management Corporation.
The pledge agreement included a change-of-control clause that entitled
CB Sparks Management Corporation to be released from the pledge if the
first applicant ceased to be Chairman of the bank. Viorel Ţopa resigned on
20 August 2001 and before his employment terminated he approved the
withdrawal of the pledged deposit.
In the autumn of 2001 the Office of the General Prosecutor carried out an
investigation into, inter alia, the release of the pledge. The investigation
found that Viorel Ţopa had not committed a criminal offence. In an
ordinance issued on 16 October 2011 the Office of the General Prosecutor
determined that there was no case to be submitted to a court. It contained
the following order:
“To refuse the initiation of a criminal case in respect of the materials concerning the
activity of ‘Banca de Economii’ S.A. due to lack of constitutive elements of an
offence in the deed of a public officer.”
On 11 August 2011 – the same day that the first and second applicants
held a press conference publicly accusing VP of perpetrating the raider
attack against their shares at Victoriabank – the CCECC commenced an
investigation into whether an offence had been committed under
Article 191(5) of the Criminal Code (appropriation of another person’s
property committed on an especially large scale), an offence punishable by
eight to fifteen years’ imprisonment. In a report dated 20 December 2010
the prosecutor considered Viorel Ţopa’s “guilt in committing the offence
provided for by Article 191(5) of the Criminal Code” to be “proven”. As
such, “the prosecution authority [had] no doubts concerning the guilt of
Ţopa Viorel”.
The case was assigned to Judge Simciuc. Once again, the Chairman
stated that in accordance with the established procedure, the case should
have been distributed to Judge Girbu, but as she was on sick leave taking
care of her minor child the case had to be assigned to another judge.
On 20 December 2011 Viorel Ţopa was indicted under Article 191(5)
and Article 335(3) (abuse of position) of the Criminal Code. The indictment
did not specify the nature of the property allegedly appropriated, nor did it
indicate the alleged “especially large scale” of the wrongdoing.
The case was referred to the Buiucani District Court. Viorel Ţopa made
the following interim applications: for disclosure of the bank’s relevant
internal rules and ordinances, for the opportunity to question the witnesses
relied on by the prosecution in its indictment, to rely on the bank’s
regulations and decisions relating to the scope of its President’s authority, to
call witnesses who were members of the bank’s Supervisory Board at the
relevant time, and to call witnesses who were members of the bank’s
Executive Board. All were refused without reasons being given.
On 13 January 2011 Judge Simciuc convicted Viorel Ţopa and sentenced
him to eight years in prison in a closed regime. Viorel Ţopa did not attend
the hearing, having filed a request for the court to consider the case in his
absence. His lawyer conducted the defence on his behalf.
In its judgment, the court found that the withdrawal of the pledge could
only have been accepted by the bank’s Crediting Committee and not by the
Chairman acting unilaterally; and that “misappropriation” included the
transfer of another’s property without return of its equivalent. Insofar as the

defence sought to argue that CB Sparks Management Corporation had to be
released from the pledge following his resignation, the court found that
Viorel Ţopa had not ceased to be Chairman at the date of withdrawal (he
had resigned but his employment had not yet terminated). The court further
found that Viorel Ţopa in fact managed CB Sparks Management
Corporation. Although the defence had sought to rely on the Ordinance of
16 October 2001, the court noted that the General Prosecutor’s Office had
no record of such a document. The court refused to hear the evidence of the
prosecutor who allegedly issued the ordinance on the basis that the case was
known to him as a result of his professional duties.
In the same judgment, the judge accepted a civil claim filed by Banca de
Economii in which it required Viorel Ţopa to pay USD 400,000 by way of
pecuniary damage.
Viorel Ţopa appealed to the Court of Appeal, asking that his sentence be
quashed and the case retried. He further asked the court to issue a writ
indicating that the prosecutor and first instance judge had acted illegally in
the administration and examination of the case. He submitted that, in light
of the ordinance of 16 October 2001, the prosecution was in breach of the
principle of ne bis in idem; that the case had been tried by a court which
lacked territorial jurisdiction; that the court had wrongly found that the term
of imprisonment had to be served in a closed penitentiary; and that the
essential elements of the offence had not been proven.
On 10 July 2012 the Court of Appeal dismissed the appeal. It held that
the first instance court had analysed all the evidence and “correctly deduced
the guilt” of the defendant. In this regard, it had been proven that Viorel
Ţopa acted intentionally to illegally expropriate the sum of USD 400,000
from Banca de Economii, and that he had in fact expropriated this amount,
causing significant damage to the bank. The Court of Appeal further held
that the first instance court had jurisdiction to try the case, and, in view of
the severity of the crime, it found the defence’s argument based on the
legality of the sentence to a term of imprisonment in a closed penitentiary to
be “groundless”.
At the hearing two former prosecutors had confirmed the existence of the
ordinance of 16 October 2001. The court, however, noted that the ordinance
did not offer “a criminal and legal appreciation” of the defendant’s actions,
but instead “presented a detailed picture of all the facts of the case”. In any
event, it considered that it was a forgery as no trace of it had been found in
the alphabetical registry.
Following the Court of Appeal decision, the General Prosecutor’s Office
initiated a criminal investigation into the falsification of the ordinance.
Viorel Ţopa appealed to the Supreme Court. He argued that both the first
instance court and the Court of Appeal had entirely ignored all the claims
made and evidence submitted by the defence; that the decision of the
appellate court was unfounded and based on an erroneous interpretation of
both the evidence and the law; that the decision of the appellate court did
not set out the factual and/or legal grounds for dismissing the appeal; and
finally, that there had been a breach of his right to a fair trial guaranteed by
Article 6 of the Convention.
On 14 November 2012 the Supreme Court dismissed Viorel Ţopa’s
appeal. It held that the criminal court had jurisdiction to try the case; that the
verdict of the first instance court and the decision of the appellate court
were properly reasoned, based on the available evidence and contained no
legal errors; and finally, that the grounds related to the existence of the
ordinance were “totally unfounded”.
By a letter dated 5 March 2013 the Deputy Prosecutor General confirmed
to Viorel Ţopa’s lawyer that the ordinance of 16 October 2001 had been
found in the report on inspection of the activity of Banca de Economii SA in
the period 1 April 1999-31 December 2001. It further confirmed that,
according to the ordinance, the withdrawal of the pledge on 20 August 2001
had not contravened the legislation then in force.
(c) The applicants’ concerns about the assignment of courts and judges
The two criminal cases were heard by the Buiucani District Court which
the applicants believe lacked competence. Pursuant to Article 40 of the
Criminal Procedure Code, cases should be heard by the court in the
territorial jurisdiction in which the crime was committed. Where a crime
was committed outside Moldova, it should be heard by the court in the
territorial jurisdiction of the last permanent domicile of the defendant. As
the blackmail forming the basis of the charges against Victor Ţopa and
Vladimir Morari took place in Russia, the case against them should have
been heard in the Chisinau Centre District Court and the Orhei District
Court (being the courts in the districts of their last permanent domicile).
However, the Buiucani District Court refused their request to transfer the
case. Similarly, the case against Viorel Ţopa should have been heard in the
Chisinau Centre District Court as both he and the Banca de Economii were
domiciled in that district.
The applicants also believed that there was a breach of the principle of
the random allocation of cases. According to Article 344 of the Criminal
Procedure Code, cases should be allocated to judges in alphabetical order by
their last names, although deviations are permitted when a judge is seriously
ill or where there are other justified grounds. Both cases were initially
assigned to Judge Girbu, who was on sick leave to take care of her child.
According to the applicants, if this was true the cases should have been
assigned to the next judge in alphabetical order. This did not happen in
either case.
4. Relevant domestic developments

(a) Political developments
On 7 October 2011 the Commission for Economy, Budget and Finance
adopted an investigatory report on the examination of the measures taken by
the National Bank of Moldova and the National Commission of Financial
Markets during the transactions concerning the shares of
Moldova-Agroindbank A.A., Universalbank S.A., Banca de Economii S.A.,
Victoriabank S.A. and International Insurance Company “ASITO” S.A. The
report indicated that raider attacks were a common phenomenon in the
Republic of Moldova.
In presenting the report to Parliament the then Prime Minister stated that
the General Prosecutor and Ministry of Justice had to urgently initiate a
disciplinary procedure to punish all representatives of the State authorities –
including judges – suspected of having violated the law in this regard.
However, he indicated that certain State agencies – in particular the General
Prosecutor’s Office – were frustrating attempts to address the situation. He
further stated that:
“The case of the banks attacks and the way many institutions acted, as well as the
multitude of actions attempting to block the activity of the Government and my
activity as Prime Minister, brought me to the point of acknowledging today, in front
of you and of the citizens, that I was mistaken at the formation of the [alliance
forming the Government] in allowing the most important and powerful institutions to
fall within the control of a single party, and in fact of a single man.”
The Prime Minister presented Parliament with a draft Decision calling
for the dismissal of several public servants, including the General
Prosecutor. On 13 October 2011 Parliament decided that the Speaker would
begin proceedings for the dismissal of the General Prosecutor on 20 October
2011. However, no debate took place on that date.
In an interview on “Moldova Live” on 13 October 2011 the Prime
Minister stated:
“Why [our request to dismiss the heads of State institutions] was not supported by
the Democratic Party is obvious ... we are talking about persons promoted by this
party, but to be more precise, promoted by one individual from this party – by [VP] –
and it is obvious that the dismissal of these people and the appointment of leaders who
will make these institutions act according to the law and not based on some group
interest or subservience to the person mentioned, was perceived as a danger.”
On 13 January 2012 a former Deputy Prime Minister summed up the
situation in Moldova in the following terms:
“the Republic of Moldova is a State controlled by mafia-type clans, it is a captive
State, where State institutions are subordinate to oligarch groups that exercise power
on their own ...”
(b) Judicial reforms

On 4 March 2010 and 5 July 2011 Parliament voted for the dismissal of
Judge Muruianu from his position as Chairman of the Supreme Court due to
concerns about corruption. On both occasions this decision was overturned
by the Constitutional Court. A former Minister of Justice stated in a
televised interview that:
“The attempt to get Muruianu back into the position of head of the Supreme Court
of Justice is only a business project organised by mafia groups. Several business
people who have built empires need Muruianu in this key post.”
On 8 July 2010 a draft law to reform the judiciary and dissolve the
Economic Courts was defeated by a single vote. In the course of the debate,
the Head of the Liberal Democrat Party, who had introduced the bill, stated
that:
“... this draft law is the litmus paper in the fight against corruption in the judiciary. If
we want to perpetuate the state of corruption and the enormous bribes that are paid in
the economic courts, we do not have to support this bill ...”
On 22 July 2011 Parliament enacted a law abolishing the Economic
Courts. However, the Constitutional Court ruled in February 2012 that the
dismantling of the economic courts was unconstitutional as the activity of
specialised courts of law is regulated by the Constitution and an organic law
cannot annul this provision. Later that month the Government approved
amendments to the law and in March 2012 the Economic Court and the
Economic Appeal Court were abolished and replaced by the District
Commercial Court, with a competence significantly restricted compared to
that of the former Economic Court.
In April 2014 the Supreme Council of Magistrates stripped four judges of
the former Chisinau Economic Court of Appeals of their judicial immunity
to allow the Prosecutor General’s Office to initiate criminal cases against
them. These judges included Aurel Colenco, the former chairman of the
Economic Court of Appeals, Eugeniu Clim, and Valeriu Harmaniuc. The
Supreme Council of Magistrates accused the judges of illegally maintaining
an “obviously illegal decision of an inferior court, thus prejudicing the
parties in the trial” and ignoring “huge legal gaps”. On 7 October, however,
by a vote of six to four, the Supreme Council of Magistrates turned down
the General Prosecutor’s request to launch criminal proceedings against the
four judges. One member argued that the prosecutor’s request was illegal
given that the statute of limitations in the case involving the judges had
expired. Without the council’s consent, the criminal investigation could not
take place, and in December 2014 the Anticorruption Prosecutor’s Office
closed the criminal case against the four judges.
On 25 November 2011 Parliament adopted a comprehensive strategy to
reform the justice system (the 2011-16 Justice Sector Reform Strategy) and
an action plan was adopted on 16 February 2012. The aim of the Justice
Sector Reform Strategy was to “strengthen the independence,
accountability, impartiality, efficiency and transparency of the judicial
system” and it was designed around the following seven pillars: the judicial
system; criminal justice; access to justice and enforcement of court
decisions; integrity of the justice system players; the role of justice in
economic development; human rights in the justice system; and well
coordinated, managed, and accountable justice system. No significant
legislative reform was carried out until mid-2016 when Parliament adopted
Law no. 76. This law provided for the merger of forty-four first instance
courts into fifteen over a ten-year period. The specialised – commercial and
military – courts were the first to be abolished on 1 April 2017.
The Justice Sector Reform Strategy 2018-2021 aims to consolidate and
continue the reforms already implemented.
B. Relevant domestic law and practice
1. The Constitution of Moldova

The Constitution guarantees the right to a fair trial and the protection of
property. The relevant provisions are contained in Articles 20, 21 and 46:
“Article 20: Free access to justice
1. Any individual person shall be entitled to obtain effective reparation on the part
of competent courts of law against actions infringing upon his/her legitimate rights,
freedoms and interests.
2. No law may restrict the access to justice.”
Article 21: Presumption of innocence

“Any individual person indicted for having committed an offence shall be presumed
innocent, until found guilty on legal grounds during a public trial in which all
guarantees necessary for his/her defence have been brought forward.
...”
Article 46: Right to private property and its protection

“1. The right to possess private property and the debts incurred by the State shall be
guaranteed.
2. No one may be expropriated unless for a matter of public utility, established,
under the law, against a fair and previously determined compensation.
3. No assets legally acquired may be seized. The legal nature of the assets’
acquirement shall be presumed.
4. Goods intended for, used or resulting from misdemeanours or offences shall be
seized only under the law.
5. The right of private property carries with it the duty to observe the rules
regarding the protection of the environment, the maintenance of good neighbourly
relations and the observance of all the other duties that have to be fulfilled by owners
of private property under the law.
6. The right to inherit private property shall be guaranteed.”
2. The Civil Procedure Code of the Republic of Moldova

Jurisdiction of the economic courts is governed by Article 29 of the
Code. Article 29(1) provides that they “shall examine” economic litigation
deriving from civil, financial, land and other relationships between legal
entities; cases between a shareholder and a joint stock company, between
members of other companies and a joint stock company which results from
the economic activity of the company; cases regarding declarations of
insolvency; challenges to administrative acts regarding ownership rights
over goods; challenges to arbitrators’ decisions and enforcement measures;
and cases concerning suspension and/or withdrawal of licences.
Articles 102-108 relate to the summonsing of defendants in civil
proceedings. Article 102 requires the court to summons the participants,
informing them of the place, date and hour of any hearing in a manner that
would allow them to prepare themselves for trial. Except in urgent cases, the
summons must be handed over to the parties at least three days in advance
of the hearing date. Article 105 requires that the summons either be sent by
registered mail with acknowledgment of receipt or through a person
appointed by the court. If the addressee cannot be found at his residence or
place of employment, the summons may be delivered to an adult family
member living at the same address. In the absence of such a person at the
address, it may be delivered to the organisation responsible for housing
management, the town hall, or an employer. Pursuant to Article 108, if a
defendant cannot be found, despite all reasonable efforts, the president of
the court shall order his public summonsing through publication of the
summons in a national or highly circulated local newspaper at least fifteen
days (five in urgent cases) prior to the hearing date.
Article 167(1)(b) requires a receipt of payment of a court fee to be
attached to an application for a summons.
Pursuant to Article 388, a first instance judgment must be rejected if the
case was heard by judges constituted illegally or if it was tried in the
absence of a participant who was not informed about the place, date and
hour of the hearing.
Article 118 requires each party to a hearing to prove the facts relied on.
Equality of arms is guaranteed by Article 26 of the Code.
Article 259 of the Code provides that parties who are not present at a trial
must be sent a copy of the reasoned judgment within seven days from the
date on which the judgment was delivered.
3. The Civil Code of the Republic of Moldova

Article 150 provides that the legal regime of joint property shall be
applied to shares in a limited liability company acquired during marriage.
Pursuant to Article 369, a legal act of disposal by one co-owner may be
declared null if it is proved that the other party knew or ought to have
known that the other co-owner was against the conclusion of the act.
Article 152(9) requires a legal act of share alienation to be certified by a
notary, but pursuant to Article 202 the consent of a third party to a legal act
does not have to be expressed in the same form required for the act.
Article 735 permits a party to rescind a contract in the case of
non-performance by the other party. However, by virtue of Article 643, if a
creditor accepts execution of an obligation, the task of proving
non-performance rests with him or her.
If an asset is acquired – by exchange of value – from a person who did
not have the right to sell it, Article 375 provides that the owner may claim
the asset from the acquirer in good faith only where the asset had been lost
by the owner or by the person to whom he has conveyed it, or the asset had
been stolen from either of them, or had gone out of their possession in any
other way, without their consent. Where the assets have been acquired
without consideration from a person who was not entitled to alienate them,
the owner is entitled to claim the assets in all cases.
Article 267 provides that the general period, within the limits of which a
person can defend a violated right by bringing an action to court, is three
years.
4. The Family Code

By virtue of Article 21, each spouse has the right to enter into an
agreement disposing of collective goods, the consent of the second spouse
being presumed. An agreement signed by one spouse can be declared null
and void by a court at the request of the other spouse if it is proved that the
other party to the agreement knew or ought to have known that that spouse
was against the signing of the agreement. A claim for a declaration of
nullity can be filed within three years from the moment when the second
spouse knew or ought to have known about the contract.
5. Law on Public Notaries

Pursuant to Article 3, a notarised act is presumed to be legal, authentic,
have the legal force of evidence, and be enforceable.
Article 50 further provides that liability for the communication of a false
price of the goods, and other erroneous data, shall be borne by the guilty
party.
6. Law on judicial organisation

Article 6 contains the principle of the random allocation of cases. It
requires that the activity of judging cases be carried out with respect to the
principle, except in cases where the judge cannot participate in the trial for
objective reasons.
By virtue of Article 27, the President of the court organises the activity
of the court, including the random distribution of lawsuits to judges. Where
the judge(s) assigned to a case is/are unable to continue with its
examination, the President shall reassign the case to another judge or panel
of judges.
Similarly, Article 39 requires the President of the Court of Appeal to
organise the activity of the court, including the random distribution of
lawsuits to judges and the reassignment of cases to other judges or panels of
judges when the assigned judge cannot sit.
Pursuant to a decision of the Supreme Council of Magistrates dated
1 March 2007, cases should be distributed randomly using the cyclic
method.
7. The Criminal Procedure Code of the Republic of Moldova

Pursuant to Article 1(3) of the Code, “in the course of proceedings,
criminal investigative bodies and the courts shall act in a manner such that
no one is unjustifiably suspected, accused or convicted and no one is
arbitrarily or unnecessarily subjected to coercive procedural measures”.
Articles 235 and 254 further provide that criminal investigative officers
should be independent and undertake all measures provided by law to
comprehensively, completely and objectively investigate the circumstances
of a case in order to find the truth.
Article 40 establishes the courts’ territorial competence. Article 40(1)
provides that a criminal case shall be heard by the court in the territorial
jurisdiction of which the crime is committed. Article 40(3) provides that
criminal cases related to crimes committed outside the borders of the
country shall be heard by the court in the territorial jurisdiction of the last
permanent domicile of the defendant or, if unknown, in the territorial
jurisdiction in which the criminal investigation of the case is completed.
The procedure by which cases received for hearings are assigned to
judges is set out in Article 344:
“A case received by the court shall within three days be assigned to a judge or, as
the case may be, to a panel of judges by the president or vice-president of the court in
a resolution in the manner set at the beginning of the year by assigning case numbers
to judges in alphabetical order by their last names. Deviations from this order may be
allowed only in the case of the serious illness of the judge assigned the respective case
number or in cases related to other justified grounds to be reasoned in the ruling on
reassigning the case to another judge. If the case is assigned to a panel of judges, the
president or vice-president of the court shall decide which of the judges on the panel
will preside at the hearing.”
The summonsing of defendants is addressed in Article 236, which states:
“(1) A person shall be summonsed to a criminal investigative body or to the court
by a written summons. Summonsing may also be performed by a telephone or
telegraph note or other electronic means.
(2) Summonsing shall be performed so that the person summonsed is served the
summons at least five days prior to the date when he/she is supposed to appear before
the respective body. This rule shall not apply to the summonsing of the
suspect/accused/defendant or other participants in the proceedings when urgent
procedural actions need to be undertaken as part of the criminal investigation or the
case trial.
(3) The summons shall be served by the agent authorized to serve a summons
(hereinafter referred to as the agent) or by the postal service.”
According to Article 64, suspects shall have the right to a defence and
the criminal investigative body shall provide the suspect with the possibility
to exercise his or her right to a defence through all the means and methods
allowed by the law.
8. The Criminal Code of the Republic of Moldova

Pursuant to Article 189, blackmail committed on “an especially large
scale” shall be punished by imprisonment for 10 to 15 years.
Article 191 defines “appropriation of another person’s property” as “the
misappropriation of another person’s goods entrusted into the
administration of the guilty person”. According to Article 191(5), when
committed on “an especially large scale” it shall be punished by
imprisonment for 8 to 15 years.
Article 335 concerns the abuse of official positions, which is defined as:
“(1) The deliberate use of an official position by a person administering a
commercial, social, or other non-state organization of his/her job position for purposes
of profit or for other personal interests provided that such an action caused
considerable damage to public interests or to the legally protected rights and interests
of individuals or legal entities.”
It is normally punished by a fine in the amount of 150 to 400
conventional units or by imprisonment for up to 3 years. However, when it
results in “severe consequences” it is punishable “by imprisonment for
3 to 7 years with the deprivation of the right to hold certain positions or to
practise certain activities for 2 to 5 years”.
Pursuant to Article 60, the criminal law liability period is 15 years in
respect of a “serious crime” (being an act for which the criminal law
provides for punishment by imprisonment from five years up to twelve
years inclusively).
C. Relevant international reports
1. Parliamentary Assembly Monitoring Committee on the Honouring

of Obligations and Commitments by Member States of the Council
of Europe (: Honouring of obligations and commitments by the
Republic of Moldova
This information note was prepared by the co-rapporteurs on their fact-
finding visit to Chisinau from 28 November – 1 December 2011. With
regard to the reform of the judiciary, the co-rapporteurs made the following
observations:
“In our discussions, the opposition and NGO representatives deplored the
interference of politics in the judiciary. According to these interlocutors, this was
demonstrated by attempts to dismiss the President of the Supreme Court of Justice
(which were ruled out by the Constitutional Court), by the replacement of the
President of the Constitutional Court by the Minister of Justice; by the replacement of
the President of the Court of Appeal by a member of a small party that joined the
ruling coalition. This perception was also nourished by allegations – which however
were not documented – that a secret protocol signed by the ruling alliance sought to
distribute the highest posts in the judiciary among the coalition partners. Such
practices could obviously contribute to undermining people’s confidence in the
judiciary.”
2. US State Department Country Reports on Human Rights Practices

for 2011
The report provided, insofar as relevant:
“The most significant human rights problem in the country during the year was
government corruption, which undermined the credibility and effectiveness of police
and the judiciary as well as respect for the rule of law in general.
...
The law provides for an independent judiciary; however, there were reported
instances of government officials failing to respect judicial independence in practice.
Official pressure on judges and corruption remained serious problems. There
continued to be credible reports that local prosecutors and judges sought bribes in
return for reducing charges or sentences, and observers asserted that in many cases
judges faced political influence. Political factors also played a role in the
reappointment of judges. According to Freedom House, judges were appointed and
promoted based on subjective and non-transparent factors. Younger judges, with
initial five-year appointments, were particularly vulnerable to influence by the
executive branch.
According to the 2011 EU progress report, the judicial system suffered from a
number of endemic problems, including inadequate efforts to fight corruption; reform
the judiciary, prosecution, and police; and implement certain human rights
commitments, particularly reforms and mandatory training related to the judiciary.
The country has a judicial code of ethics as well as inspector judges, responsible for
investigating and reporting cases of judicial misconduct or ethics breaches to the
Supreme Council of Magistrates. Inspector judges referred 69 cases against judges

during the year. The council issued warnings to six judges. No judge was dismissed or
investigated on corruption charges. High state officials stated that a number of judges
compromised justice.”
3. The International Committee of Jurists (“ICJ”) Reforming the

Judiciary in Moldova: Prospects and Challenges, 2013
Following a mission to Moldova in September 2012 the ICJ assessed
recent progress made in reform of the judicial system. It made the following
observations:
“The need for reform
The challenges faced in reform of the judiciary are indeed formidable. The mission
heard from a range of interlocutors that significant problems remain within the
judiciary. The judiciary is widely distrusted by the public as prone to corruption, and
as open to undue influence from both public authorities and private persons and
entities. At the same time, the ICJ heard reports that judges who seek to act
independently may also face pressure from those interested in the case, including from
state bodies as well as private persons and entities. The mission heard of significant
problems concerning unreasoned or poorly reasoned decisions by many judges. Senior
figures in both the government and the judiciary recognise that some judges have such
poor legal knowledge and skills that they are unable to discharge their duties
effectively.
...
In recent years, the independence of the judiciary has been under significantly less
pressure. Legislative reforms have reversed the retrogressive measures enacted in the
early 2000s, altered the composition of the Supreme Council of Magistracy,
strengthened its independence, and limited the role of the Moldovan President in
Judicial Appointments. Although problems of corruption and government influence
and some vestiges of telephone justice culture may remain, there is no indication of
the kind of systematic government attempt to control the judiciary that was evident in
2004.
Many of the problems of the judiciary that persist in Moldova are derived from the
past and are similar to those in other countries of the former Soviet Union. It would be
fair to say that the country’s judiciary and the government as a whole has not yet been
able to overpass that culture and tradition which are to be challenged by the reforms
underway. However, the biggest challenge of the new and probably biggest wave of
the reforms is this Soviet and post-Soviet legacy still salient in Moldova.”
The report further noted that the Supreme Council of Magistracy
(“SCM”) was the main governing body of the judiciary, with responsibility
for judicial appointments, evaluation of judicial performance, promotions,
inspection and disciplinary matters. Although it was independent, it was
perceived as a relatively weak institution, partly because it lacked staff and
resources.
4. Soros Moldova: Assessing the First Year of Moldova’s

Implementation of the Association Agenda – Progress and
Opportunities in the Political Sphere (January 2016)
This report identified a number of problems in the judicial sector,
including, but not limited to, the following:
“1.3. Selection and promotion of judges
The transparent appointment and promotion of judges is of paramount importance
for the independence and efficiency of the judicial system. In Moldova, the
appointment and transfer of judges is mainly the responsibility of the Supreme
Council of Magistracy (SCM). The work of the SCM in this field, however, is not
sufficiently transparent. A SCM monitoring report by the Legal Resources Centre of
Moldova (LRCM), covering January 2013 - September 2014, found a number of
serious problems in this regard, including: promotion to the Supreme Court of Justice
(SCJ) and courts of appeal of judges who had obtained lower scores at the Board for
Selection and Career of Judges; the design of separate competitions for each position,
which creates avenues for manipulation; and the use of inadequate criteria for the
selection of judges that do not contribute to the promotion of the best candidates. For
instance, the performance during the 18-month long studies at the National Institute of
Justice Judicial Academy constitutes only 30 per cent of the employment assessment
score. Emphasis on more subjective criteria, such as the interview and the motivation
letter, discourages future judges from studying well and creates avenues for
preferential treatment during the selection process. Similarly, in the case of
promotions, past performance evaluations constitute only 40 per cent of the criteria.
The LRCM report established that judges are appointed and promoted mainly based
on the personal preferences of members of the SCM and not on merit. This confirmed
that the new system of promotion of judges introduced in 2012 did not bring the
anticipated results. The report also found that, as a general rule, the SCM does not
explain its decisions concerning appointments or promotion. This entire process
discourages good candidates from applying for promotion.
...
1.5. Random assignment of cases in courts
The electronic system of random assignment of cases, called the Integrated Case
Management System (ICMS), was introduced to limit corruption in the courts. On
11 December 2014, the Anti-corruption Prosecutor initiated an investigation against
eight employees of a Chisinau district court. The staff members were suspected of
interfering with ICMS between 2012 and 2014, so that certain cases (concerning large
monetary claims) were examined by a specific judge. On 30 December 2014, the
SCM gave its consent for a criminal investigation of those judges suspected of
participating in these actions.
On 23 December 2014, the Chairperson of the SCM notified the National
Anti-corruption Centre of the alleged manipulation of ICMS by the Deputy President
of the Supreme Court of Justice (SCJ). The claim refers to 22 cases of alleged
manipulation of ICMS during January-November 2014. The Anti-corruption
Prosecutor’s Office is still examining the case.
On 2 February 2015, 16 civil society organisations called upon the SCM to urgently
address the issue of case distribution in all courts, identify vulnerabilities and sanction
those involved in manipulating the random case distribution system. As of October
2015, the SCM had not reported on the subject. This can be seen as tolerance of
misconduct.
...
Conclusions and Recommendations
Despite the Government of Moldova’s encouraging assessment of the justice
reform, the real picture is less inspiring. In September 2014 - September 2015 no
substantial new actions were undertaken. Many of the achievements reported by the
Government did not lead to positive results. It is clear that justice reform is on hold
and that, without the stronger and more vocal engagement of EU institutions, there
will be little, if any, progress in this field. The country also remains highly vulnerable
to corruption despite a rather developed national integrity system, aimed at
preventing, detecting and fighting corruption. The main cause of the stalled progress
is the lack of independence of law enforcement and regulatory bodies. The corruption
scandals that destabilised the socio-economic and political situation in Moldova
illustrate the ineffectiveness of and political control over the anti-corruption
institutions. Nonetheless, the Government has undertaken important steps including
adopting a legal instrument to protect against discrimination on all grounds and
creating a national anti-discrimination mechanism. However, there are important
limitations in the Law on Equality and concerns remain about the standards on non-
discrimination in the judiciary.”
5. The World Bank – Improving Access to Justice: From Resources to

Results (2018)
This review of justice sector public expenditure and institutions was
prepared jointly by a World Bank team with strong and interactive support
from the Government of Moldova. It made the following findings:
“State capture is pervasive. Oligarchic interests and elite reluctance to reform a
political system that serves their interests define Moldova’s political economy. Nearly
USD20 billion was reportedly laundered through Moldovan banks in recent years and
nearly USD1 billion (about 15 percent of GDP) was stolen in a 2014 corruption
scandal: investigations are still ongoing. Successive governments promised to combat
corruption and transform the judiciary, the prosecution and the police into
professional, rule-based entities functioning with integrity and public trust; little has
changed on the ground.
...
Despite numerous new laws, justice and anti-corruption reform
implementation remains lackluster, with some reforms compromised or throttled
from inside the system. Entrenched interests resist efforts to make the system more
transparent, accountable and predictable – one with a more rational, performance-
based distribution of resources across the system. Judges’ appointment and
promotions are not perceived as strictly following prescribed criteria and rules.
Prisons are a sensitive issue, with investigative reports documenting how organized
crime and property capture appears to be led from inside prisons. If reforms are to
succeed, state capture and corruption – the binding constraints to improving justice
performance - need to be addressed first.
...
The JSRS declared the promotion and implementation of zero tolerance for
justice sector corruption as a key objective, but Moldova has a long way to go, as
the 2017 surveys of court users show. Delays in JSRS implementation have already
cost Moldova about EUR1.8 million in lost EU financial support for the justice sector.
A major red flag was the perception that the SCM shielded judges from criminal
prosecution. Information systems were found to be vulnerable to manipulation and
corruption. The electronic system of random assignment of cases, the Integrated Case
Management System (ICMS), was introduced to limit corruption in the courts. In
December 2014, an investigation began against eight employees of a Chisinau district
court suspected of manipulating the ICMS between 2012 and 2014 so that certain
cases (concerning large monetary claims) were allocated to specific judges. Despite
the JSRS’s stated zero tolerance for corruption, actual anti-corruption actions and
practices do not appear to have wrought actual change on the ground.”
The report further noted that although major reforms had targeted the
General Prosecutor’s Office concerns over prosecutorial independence
remained.
6. Centre for European Policy Studies Integrity on Trial: Judicial

reform in Georgia, Ukraine and Moldova (No 2018/04, June 2018)
In considering the problem of corruption in the justice sector, the report
noted:
“Moldova is a typical example of over-regulation with no discernible practical
impact. As noted earlier, several important legislative amendments have been
implemented either partially or contrary to the stated goals. A case in point concerns
the selection and promotion of judges. In 2012, the Moldovan Parliament passed a
package of legislative amendments that introduced, inter alia, the Judges’ Selection
and Career Board; criteria for the selection, transfer and promotion of judges; a
mandatory three-yearly performance evaluation; and a limited discretion of the
Superior Council of Magistracy (SCM) on the career of judges. These novelties
should have led to the selection and promotion of the most competent and correct
candidates. Yet the practice of 2013-17 shows a different picture. For instance, in the
period 2013-16 several cases were noted when judges with outstanding integrity
issues were appointed or promoted by the SCM, including after the president’s
unsubstantiated refusal to appoint other candidates. Credible mass-media have
disclosed integrity problems regarding several candidates. Civil society organisations
have requested adequate procedures from the SCM, however, no reasoning was ever
provided by the SCM for appointing or promoting judges with integrity issues.
...
Corruption in the Moldovan judiciary sparked peak public indignation in September
2016, when 16 judges were criminally charged for money-laundering activities in a
$20 billion ‘Russian Laundromat’ scheme. Although the SCM had been aware since
2012 of the involvement of judges in these cases, it took no action until the autumn of
2016. In the meantime, several of the incriminated judges were positively evaluated,
promoted to administrative positions in district courts or to Courts of Appeal. The
majority of judges that issued court orders for the transfer of funds came from the
Chișinău Rîşcani District Court, where the current president of the SCM served before
2013. The Moldovan think tank IDIS Viitorul has concluded that judges were aware
of the illicit nature of the transactions and adopted decisions in favour of criminal
networks because they were assured of high political support. The cases against the
judges have been pending since August 2017.
Several other negative trends have eroded public trust in the (independence of the)
judiciary. One is the phenomenon of closed hearings in high-profile cases such as that
of Moldova’s ex-Prime Minister Filat, sentenced to nine years in prison for, inter alia,
passive corruption. The first instance and appeals courts heard the case in closed
proceedings. On 22 February 2017, the supreme court rejected Filat’s appeal in a
written procedure. Only the decision of the supreme court was published in full. Two
other notorious cases concerned the ‘billion-dollar theft’ from the Moldovan banking
sector. Examining such cases behind closed doors fuels the perception of abuse
among the public.”
According to the report, six days before the sentence in Mr Filat’s case
was issued by the first instance court, the SCM adopted a new ‘Regulation
on publishing court decisions’, according to which decisions of cases
examined behind closed doors were not to be published on its website. The
previous regulation from 2008 did not provide such a limitation and all
court decisions were published.
The report further observed that neither the Constitutional Court nor the
Supreme Court had “taken any decision that would run directly counter to
the interests of the Democratic Party of Moldova”.
7. Freedom House Nations in Transit

According to the current Freedom House Nations in Transit report,
although each government cabinet has included judicial reform and
increased independence among its priorities since 2011, and the legal
framework has improved over the years, the independence of judges and the
application of legislation “leave much to be desired”. In 2017 the major
problem was the selective application of the law. This was demonstrated by
biased judicial appointments, the examination of important cases behind
closed doors, and the use of justice for political purposes.
D. Relevant European Union reports
On 3 April 2018 the European Commission published a Joint Staff

Working Document on Association Implementation Report on Moldova.
With regard to justice sector reform in Moldova, it stated that:
“The Ministry of Justice coordinated the drafting of a new justice sector reform
strategy 2018-2024, albeit without proper consultation with the stakeholders. In
January 2018, the Ministry of Justice presented a concept paper on justice reform
priorities for 2018 intended to fill in the gap before the adoption of the new strategy.
As regards the transparency and efficiency of the judicial process, Moldova ranked
132 out of 137 countries on judicial independence in the Global Competitiveness
report 2017-2018 of the World Economic Forum (WEF). In the area of independence
of the judiciary efforts are still needed in order to promote a transparent and
merit-based selection procedure for judges and to improve transparency, including of

the Superior Council of Magistracy (SCM).”
COMPLAINTS
All of the applicants in application no. 40339/11 complain under
Article 6 of the Convention about the conduct of the five cases which they
claim formed the basis of the “raider attack”. In particular, they complain
that the domestic courts lacked independence and impartiality; that they
were not afforded equality of arms; and that the domestic courts provided no
or insufficient reasons for judgments that were wholly inconsistent with
domestic law. They also complain under Article 1 of Protocol No. 1 that
they were arbitrarily deprived of their proprietary rights and interests in
Victoriabank.
In respect of the criminal proceedings, Viorel Ţopa, Victor Ţopa and
Vladimir Morari complain under Article 6 of the Convention that they were
denied the right to participate effectively in their trials, that the principle of
“equality of arms” was not respected, that their cases were not heard before
an “independent and impartial tribunal established by law”, and that the
outcome of the trials was pre-judged in breach of the presumption of
innocence.
QUESTIONS TO THE PARTIES
1. In so far as the applicants in application number 40339/11 complain

about the series of five cases which were commenced in 2010, and by virtue
of which they claim to have been divested of their shares in Victoriabank,
(a) can Viorel Ţopa and Victor Ţopa claim to be victims of the
alleged violations within the meaning of Article 34 of the Convention?
(b) did those proceedings violate the rights under Article 6 § 1 of the
Convention of any or all of the applicants? In particular, did they enjoy a
fair and public hearing by an independent and impartial tribunal, before
which the principle of equality of arms was fully respected? Did the
domestic courts provide adequate reasons for their decisions?
(c) were any or all of the applicants “deprived of their possessions” in
breach of Article 1 of Protocol No. 1 to the Convention?
(d) if so, was that “deprivation” justified and/or proportionate, within
the meaning of Article 1 of Protocol No. 1?
2. Insofar as Viorel Ţopa, Victor Ţopa and Vladimir Morari complain
about the criminal proceedings brought against them, has there been a
violation of their rights under Article 6 § 1, Article 6 § 2 or Article 6 § 3 of

the Convention? More particularly, were their cases heard before an
“independent and impartial tribunal established by law”, with due respect
afforded to their right both to the presumption of innocence and equality of
arms?
APPENDIX
Application no. 40339/11
No. Firstname Birth year Nationality Place of

LASTNAME Date of residence/
incorporation business
1. Viorel ŢOPA 1966 Moldovan Germany
2. Victor ŢOPA 1967 Moldovan Germany
3. Victor JANTIC 1968 Moldovan Moldova
4. SC Financiar 2006 Moldova
Invest SRL
5. Stela 1962 Moldovan Moldova
CORCODEL
6. Vladimir 1976 Moldovan Germany
MORARI
7. Angela 1973 Moldovan Moldova
NASTASE
8. Inna ILIAS 1981 Moldovan Moldova
9. Provileg Invest 2007 Moldova
SRL
10. Iurie 1967 Moldovan Moldova
COBUSCEAN
11. SC Maxim 2007 Moldova
Profit Invest
SRL
Application no. 26159/12
No. Firstname Birth Nationality Place of

LASTNAME year residence
1. Viorel ŢOPA 1966 Moldovan Germany
2. Victor ŢOPA 1967 Moldovan Germany
3. Vladimir MORARI 1976 Moldovan Germany
The applicants in both cases were represented by:
1. Tom Hickmann QC of Blackstone Chambers, a lawyer practising in

London, United Kingdom;
2. Professor Dr. Hans Georg Kamann of WilmerHale, a lawyer
practising in Frankfurt-am-Main, Germany;
3. Frédéric Louis of WilmerHale, a lawyer practising in Brussels,

Belgium; and
4. Dumitru Pavel, a lawyer practising in Chisinau, Moldova.
APPENDIX 2
Case 1 2 3 4 5
Entry in Court 29 18 December 29 8 December 23
register September 2009 September 2009 November
2009 2009 2009
Case no. 2e-13318/09 2e-13194/09 2e-10972/09 2e-12800/09 2e-11059/09
Payment of 3-5 March 3-5 March 4 March 3-5 March 3-5 March
court fee 2010 2010 2010 2010 2010
Execution of 18 March 1 March 17 February 19 March 19 March
Power of 2010 2010 2010 2010 2010
Attorney
First hearing None in None in None in None in None in
summons court file court file court file court file court file
First hearing 4 March 3 March 11 December 3 February 3 February
2010 2010 2009 2010 2010
Final hearing 11 March 5 March 11 March 11 March 11 March
summons 2010 2010 2010 2010 2010
Final hearing 19 March 11 March 19 March 19 March 19 March
2010 2010 2010 2010 2010
District Plugari Rotari Rotari Namaşco Namaşco
Economic
Court judge
District 19 March 11 March 19 March 19 March 19 March
Economic 2010 2010 2010 2010 2010
Court
judgment
Economic Colenco, Moraru, Colenco, Colenco, Colenco,
Court of Clim, Clim, Clim, Clim, Clim,
Appeals Harmaniuc Harmaniuc Harmaniuc Harmaniuc Harmaniuc
judges
Economic 21 16 August 16 16 16
Court of September 2010 September September September
Appeals 2010 2010 2010 2010
judgment
Supreme Court Moldovanu, Muruianu, Muruianu, Moldovanu, Moldovanu,
judges Barba, Moldovanu, Barba, Barba, Barba,
Vilcov Vilcov Vilcov Vilcov Vilcov
Supreme Court 12 January 29 December 28 December 29 December 29 December
judgment 2011 2010 2010 2010 2010

Viorel Topa, Victor Topa and Others v. The Republic of Moldova and 1 Other Application

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Viorel Topa, Victor Topa and Others v. The Republic of Moldova and 1 Other Application

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Communicated on 16 May 2019

A list of the applicants is set out in appendix 1.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised

1. The alleged “raider attack” in 2010

1. Although AM was party to the domestic proceedings he is not a party to application

company, or between a joint stock company and members of another

The Economic Chamber of the Supreme Court dismissed the appeal.

guaranteed both by Article 46 of the Constitution of the Republic of

considered well-founded, and ordered the return of the shares in

(iii) The principle of the random allocation of cases

co-owners when disposing of property and a contract can only be held to be

2. The alleged “raider attacks” in 2011

3. The criminal proceedings

to seven years’ imprisonment in a closed regime. A dissenting judge issued

transfer of another’s property without return of its equivalent. Insofar as the

4. Relevant domestic developments

(b) Judicial reforms

B. Relevant domestic law and practice

1. The Constitution of Moldova

Article 21: Presumption of innocence

Article 46: Right to private property and its protection

2. The Civil Procedure Code of the Republic of Moldova

3. The Civil Code of the Republic of Moldova

4. The Family Code

5. Law on Public Notaries

6. Law on judicial organisation

7. The Criminal Procedure Code of the Republic of Moldova

8. The Criminal Code of the Republic of Moldova

C. Relevant international reports

1. Parliamentary Assembly Monitoring Committee on the Honouring

2. US State Department Country Reports on Human Rights Practices

Supreme Council of Magistrates. Inspector judges referred 69 cases against judges

3. The International Committee of Jurists (“ICJ”) Reforming the

4. Soros Moldova: Assessing the First Year of Moldova’s

5. The World Bank – Improving Access to Justice: From Resources to

6. Centre for European Policy Studies Integrity on Trial: Judicial

7. Freedom House Nations in Transit

D. Relevant European Union reports

On 3 April 2018 the European Commission published a Joint Staff

merit-based selection procedure for judges and to improve transparency, including of

QUESTIONS TO THE PARTIES

1. In so far as the applicants in application number 40339/11 complain

violation of their rights under Article 6 § 1, Article 6 § 2 or Article 6 § 3 of

Application no. 40339/11

No. Firstname Birth year Nationality Place of

Application no. 26159/12

No. Firstname Birth Nationality Place of

The applicants in both cases were represented by:

1. Tom Hickmann QC of Blackstone Chambers, a lawyer practising in

3. Frédéric Louis of WilmerHale, a lawyer practising in Brussels,

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