European Court of Human Rights

FOURTH SECTION

DECISION

Applications nos. 33052/05 and 31504/05
by Victor LOZINSCHI and Maria RUJAVNIŢA
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 4 November 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above applications lodged on 10 August 2005,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Victor Lozinschi and Ms Maria Rujavniţa, are Moldovan nationals who were born in 1957 and 1954, respectively. They are represented before the Court by Mr Ivan Moscal, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.

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

On 8 February 2000 the applicants entrusted their merchandise to a third party for transportation from Turkey to Moldova. On the same date, the third party was arrested at the Moldovan customs on charges of smuggling and the applicants’ merchandise was seized by police as evidence.

By a final judgment of 26 September 2000 the Supreme Court of Justice acquitted the third party and ordered the restitution of the applicants’ merchandise. Since a part of the seized merchandise had been stolen from the police station the applicants brought an action against the Ministry of Interior (“the Ministry”) seeking compensation for the stolen goods.

By a final judgment of 9 October 2002 the Centru District Court ruled in favour of the applicants and ordered the Ministry to pay Mr Lozinschi 1,715 United States dollars (USD) (23,287.52 Moldovan lei (MDL) at the time) in compensation for the stolen merchandise and MDL 6,500 (488 euros (EUR) at the time) in respect of legal costs. It also ordered the Ministry to pay Ms Rujavniţa the equivalent in the national currency of USD 1,445 (MDL 19,617.03) in compensation for the stolen merchandise and MDL 5,000 (EUR 376) in respect of legal costs.

On 12 November 2002 the bailiff received the enforcement warrant.

On 10 April 2003 a bailiff instituted administrative proceedings against the competent administration of the Ministry which had failed to comply with the final judgment in favour of the applicants.

Following the communication of the applications, on 5 December 2007 the Government informed the Court that on 5 December 2005 and on 2 March 2006 Mr Lozinschi had been paid MDL 2,000 (EUR 133) and MDL 26,079.70 (EUR 1,684), respectively, representing the amounts awarded by the judgment of 9 October 2002. They also informed that on 11 November 2005 and on 2 March 2006 Ms Rujavniţa had been paid MDL 2,000 (EUR 134) and MDL 21,187.20 (EUR 1,368), respectively, representing the amounts awarded by the judgment of 9 October 2002. The Government also attached copies of receipts signed by the applicants.

The Government further informed the Court that after having received those amounts the applicants brought separate actions against the Ministry, seeking compensation for pecuniary damage suffered as a result of their impossibility to use their money between October 2002 and March 2006. By a final judgment of 6 April 2007 the Centru District Court ruled in favour of Mr Lozinschi and ordered the Ministry to pay him MDL 10,889.88 (EUR 652) in compensation for pecuniary damage suffered as a result of his impossibility to use his money. On 12 December 2006 the Chişinău Court of Appeal ruled in favour of Ms Rujavniţa and awarded her compensation in the sum of MDL 8,976 (EUR 519). In May and March 2007 a bailiff received the enforcement warrants in respect of the judgments of 6 April 2007 and 12 December 2006, respectively, and on 21 August 2007 the applicants have been paid the amounts due. The Government also submitted copies of the relevant documents.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that their right of access to court had been violated by the failure to enforce the judgment of 9 October 2002.

The applicants also alleged that the failure to enforce the judgment of 9 October 2002 had violated their right to protection of property as guaranteed by Article 1 of Protocol No. 1 to the Convention.

THE LAW

The Court notes that on 13 December 2007 the applicants’ representative informed the Court only about the enforcement in March 2006 of the judgment of 9 October 2002.

On 27 May 2008, in reply to the information of 13 December 2007, the Government stated that the applicants had acted mala fides in that they informed the Court only about the enforcement of the judgment of 9 October 2002, while at the date of submitting the information they had already been paid compensation for the belated enforcement of that judgment.

On 5 August 2008 the applicants stated that they had informed the Court about the payment of the amounts due and requested to be awarded EUR 2,000, each, in compensation for non-pecuniary damage suffered as a result of the belated enforcement of the judgment of 9 October 2002.

The Court recalls that according to Rule 47 § 6 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. It further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004; Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006).

Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007). In the circumstances of the present case, the applicants, represented by legal counsel in the proceedings before the Court, have not furnished any plausible explanation for the failure to inform the Court about the fact that they had initiated proceedings for compensation of the amounts awarded by the judgment of 9 October 2002 and that they omitted to inform the Court that in August 2007 they had already been paid also compensation for the belated enforcement of that judgment. Having regard to the importance of the information at issue for the proper determination of the present cases, the Court finds that the applicants’ conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.

In view of the above, it is appropriate to reject the applications as an abuse of the right of application pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the applications inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President