In February 2020, the European Court of Human Rights (ECHR) ruled in the Gemini shopping center case, obliging the Moldovan State to pay a 1,5 million euros compensation for material damage. The Moldovan authorities had to either return the plaintiffs about half of the buildings fought for or pay another 2,1 million euros from the real estate value. For ten months, the state has partially fulfilled its obligations. However, the state budget will give out more millions of euros as penalties.

Although in May 2020, the applicants received 1,5 million euros in compensation, the European Court’s decision on the restitution of the Gemini shopping center buildings was not implemented. 

The lawsuit, in which a government agent demanded the case’s re-examination, is not ongoing and has been postponed several times, including the judges’ requests to challenge the decision. Also, the interests are reinforced by the fact that in 2019 the Gemini shopping center buildings were transferred Rogob, one of the largest Moldovan meat processing companies, and were mortgaged to a Moldovan bank for 9,5 million euros, who consider themselves the real owners.

On February 18, 2020, the ECHR issued a judgment in the “Ojog and other stakeholders versus Moldova case”. The decision came nine years after the Court found that an application for review had been granted in 2005, by the Supreme Court of Justice in violation of the right to a fair trial and the property right, finding that that decision had been the beginning of the process of illegal expropriation of some former shareholders of the Gemini shopping center. At the beginning of this year, the ECHR obliged the Moldovan Government to pay to Igor Ojog and the stakeholders 1,5 million euros within three months, together with the restitution, without any obstacles, of the buildings that belonged to the reviewers in the Gemini complex. An alternative was the payment of another 2,12 million euros in exchange for the buildings till May 2020.

The litigation’s story. The solution is still postponed.

In March, the Government submitted a request to the Supreme Court of Justice to reconsider the Gemini shopping center case. The Government’s agent Oleg Rotari offered the joint-stock company’s liquidation and the takeover of the current majority owners of the Gemini. The agent Rotari requested the canceling of the 2005 Supreme Court of Justice conclusion and the subsequent court decisions.

At the beginning of April 2020, the Government agent filed a petition for the proceedings, as the government had to comply with the High Court decision by mid-May 2020.

Since a hearing was scheduled for the next few days, the Supreme Court of Justice rejected the government agent’s request in early May. At a later date, he submitted to the SCJ an updated request of the requirements that did not contain any demand to speed up the procedure or cancel the 2005 conclusion, which subsequently formed the basis for reviewing the case and expropriating the applicants.

In parallel, on May 11, 2020, the government agent also asked the ECHR to reconsider its decision, arguing that the damage inflicted on the applicants was miscalculated.

The government agent asked the ECHR to review the decision after the state had already paid €1.5 million.

The Government agent asked the ECHR to review its judgment. However, a few days earlier, on May 4, 2020, the State had paid the applicants the MDL equivalent of €1.5 million, according to the Court’s decision from February.

Although the state had to comply with the ECHR decision by May 18, the case has stalled since then. On May 13, 2020, two days after applying to the ECHR, Rotari asked the SCJ judges to postpone the case review until May 15, 2020, to check additional factual circumstances. On May 19, the Government agent requested to defer the case examination for an indefinite period, announcing to the SCJ judges that he had approached the ECHR for clarification. The next day, the SCJ decided to postpone the examination of the request for review.

In early September 2020, the ECHR informed the Chișinău authorities and the parties to the case that it had examined the request for the judgment’s review and rejected it, except for a few corrections. This time, the examination of the request for revision of the Gemini file was not rushed.

The panel of judges to make the decision: two rescued but kept in the trial

The request for review of the Gemini case is to be examined by a panel of judges consisting of Mariana Pitic, Nicolae Craiu, Ala Cobăneanu, Tamara Chișca-Doneva, and Dumitru Mardari. Initially, JSC Gemini requested to remove Judge Ala Cobăneanu from the case since she was part of the panel that pronounced the conclusion of July 20, 2005, of the SCJ, which served as the basis for finding the violation of the applicants’ rights by the ECHR. This conclusion is also subject to review.

However, the SCJ rejected the recusal request, as it did on November 18 with another request by which the plaintiffs’ lawyer, Mihai Lupu, requested the exclusion of Judge Mariana Pitic from the trial, who was his clerk during his work as a judge, and whom he mentored during her internship for the position of the judge (2001-2002).

After November 18, when the request for Pitic’s recusal was rejected, no hearings were scheduled in this case, according to the information on the SCJ’s website. In response to a question from ZdG, GSP representatives told us that no meetings are planned as several cases of COVID-19 infection have been confirmed in the Civil Board and some people have gone into self-isolation.

Lawyer: “Through the fault of the judges, who did not consider the case until May 18, about €40 thousand of debt accumulated”.

“As soon as I received the response that the Court rejected the request for suspension of enforcement, on September 14, I addressed the Court with a request to expedite the examination of the request for review. The court scheduled the next hearing on October 28, a month and a half later. In the morning of the 28th, the sitting disappeared from the Agenda and re-scheduled for November 8. As a result, we filed a recusal request. Now, no meeting is scheduled at all “, says Mihai Lupu, the plaintiffs’ lawyer in the Gemini case.

“Unfortunately for us, as taxpayers, about €300 penalties have been paid daily since May 18. It’s painful. Now, about €40,000 have been accumulated, due to the fault of the judges who did not judge the case until May 18, which must be paid again, regardless of whether it will be decided to give the plaintiffs the amount of money or the building. Judges may get upset, but this amount is only their fault and we will all have to pay for it”, the defender accuses.

“The aim is not to recover and return the building to the state, but to get money from the budget”

“In May, we also submitted a review request, because we felt that there is a case of avoidance of enforcement of the judgment. The ECHR provides for the applicants to be brought back to their original position, by returning the land and commercial space they owned, according to the court decisions. I previously talked to the Government agent and told him that it seemed like he was defending the third person – the Rogob company, not the state.  At the moment, there are no impediments for the state to return the building. If the state returns the money, it is presumed that the building does not return to the state, but returns to the Rogob company, which would indicate that someone is interested in committing illegality”, Lupu accuses. In April 2019, Gemini shopping center announced that it had been acquired by Twins Estate LTD, which also owns meat company Rogob. At the same time, the building was pledged in the amount of 9.5 million euros from Moldova-Agroindbank. Gemini was previously owned by two companies associated with oligarchs Vladimir Plahotniuc and Petro Poroshenko, the former president of Ukraine.

Lupu suspects that the transaction was one related to interests because, when the shopping center was sold, everybody knew about the litigation and that the ECHR decision would follow soon. “They made it consciously and I think it was a formal transaction from one economic agent to another, but in fact, they were the same people. It is obvious that there are interests in the middle and the aim is not to recover and return the building to the state, but to receive money from the budget. It can be seen that someone is now negotiating with Rogob. I’m thinking about how the money could be returned when the building will not be returned to the state but to Rogob. So this is a trickery”, considers the lawyer. 

Government agent: “I only defend the Government interests”

Oleg Rotari, the Government agent, states that he defends exclusively the interests of the Government in this case. Rotari claims that the request to update the requirements does not mean that he does not ask for the cancellation of the SCJ’s conclusion from July 2005 and states that he had completed rather than changed the requirements.

“Let the Supreme Court give its ruling, and when it comes to a verdict, I could even present my requests on which the Government’s claims were based,” ​​the agent said. “Now I can’t give any explanation in the press for the simple reason that this is pending at the SCJ. Any statement of mine can be misinterpreted and qualified as pressure on the Court. I would like to avoid this”, argues the agent. “Any postponement in this regard was necessary to clarify certain details. I cannot quote them in the press now simply because they are necessary for the correct examination in the SCJ”.

Oleg Rotari states that he does not know why the SCJ judges do not schedule hearings on the case. “I also saw that certain fixed dates were postponed, they were modified, but I do not know the reasoning of the court. I’m waiting to see what happens. There is a lot of transparency on my part”, he says. “Believe me, I have the best faith, in this case, to end with an appropriate solution, fair for all. I don’t know what Mr. Lupu is saying. I only defend the interests of the Government. I am not going to explain what a third party says about me. Still, I assure you that all my actions were exclusively for the proper resolution of this case, representing primarily the interests of the Government, not third parties or anyone else. Please trust my words”, concludes Oleg Rotari.

Rogob company and Gemini Commercial Complex Store statements

According to the statements of the plaintiffs’ lawyer in the Gemini case, ZdG requested the position of Rogob as well as Gemini. “The Rogob company did not buy and is not the owner of JSC Gemini. The confusion probably stems from the fact that both entities have the same founders. We consider that someone intentionally misled the public opinion, operating abusively with the name of our company”, said the representatives of Rogob.

JSC Gemini statement: “The current majority shareholder of Gemini is a bona fide buyer, who benefits from the protection of his investment following the provisions of the legislation in force. The addressing of a group of minority shareholders to the ECHR is exclusively related to their relationship with Moldova’s state. It is essential to point out that all the consequences of the conflict between the state and the minority shareholder group must focus exclusively on the relations between these two parties. We regret that they are trying to involve us in this conflict. All we want is for our investor rights to be respected. We are guided by this principle, including in the SCJ process. For the trial to be fair, we take all the legal action we have at our disposal, including requesting the recusal of the judges who have previously ruled on this case. It is a correct and justified position. We are not against the trial to be handled as soon as possible, but it must not affect the quality of the act of justice or violate our right to a fair trial. However, suppose the state and the minority group of shareholders decide to solve the problems they have in their bilateral relationship on our behalf. In that case, we will take all necessary actions to recover our damage. Thus, a situation could be avoided in which the state will be obliged to pay us compensation of €100 million.”