European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 11623/05
by Victor GASITOI
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 9 December as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 18 March 2005,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases and the applicant's reply to th

at declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Victor Gasitoi, is a Moldovan national who was born in 1956 and lives in Bălţi. He is represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

Following the unlawful criminal prosecution of the applicant, he instituted civil proceedings against the Government and claimed non-pecuniary compensation.

By a final judgment of 18 April 2001 the Bălţi District Court ordered the Ministry of Internal Affairs to pay the applicant 1,800 Moldovan lei (MDL) (159 euros (EUR)).

The judgment has not been enforced to date.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that by reason of the non-enforcement of the judgment of 18 April 2001 his right to have his civil rights determined by a court within a reasonable period of time and his right of access to court had been violated.

THE LAW

On 24 June 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“[The Government]:

1. Recognise that there has been a breach of the applicant's rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of the non-enforcement of the final judgment of 18 April 2001.

2. [...] offer to pay 2,500 (two thousand five hundred euros) [to Mr Victor Gasitoi] in compensation for any pecuniary and non-pecuniary damage as well as costs and expenses.”

The applicant requested the Court to reject the Government's proposal on the basis that he considered the amount proposed by the Government to be insufficient. In particular he claimed that the pecuniary damage should be assessed at EUR 729, non-pecuniary damage at EUR 2,500 and costs and expenses at EUR 2,500.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It notes that, under Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.

The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list in particular if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also notes that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003 VI; and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).

As to the circumstances of the instant case, the Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as regards the obligation to enforce final judgments (see, among many others, Prodan v. Moldova, no. 49806/99, ECHR 2004 III (extracts); Luntre and Others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which depended on the particular features of the case.

Having regard to the nature of the admissions contained in the Government's unilateral declaration, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court's awards in similar cases), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005)).

In accordance with the standard practice in this area, the amount of compensation is to be paid to the applicant, free from any taxes that may be applicable, within three months of the date of notification of this decision. In the event of failure to pay this sum within that period, the Government shall pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

Accordingly it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early Nicolas Bratza
Registrar President