by HELSINKI COMMITTEE FOR HUMAN RIGHTS IN THE REPUBLIC OF MOLDOVA
The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 January 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the declaration submitted by the respondent Government on 8 October 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply thereto,
Having deliberated, decides as follows:
The applicant organisation is the Helsinki Committee for Human Rights in the Republic of Moldova. It was represented before the Court by Mr S. Urîtu, the head of the organisation. The respondent Government were represented by Mr V. Grosu, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 17 and 19 July 2000 several members of the applicant organisation were examining the circumstances of the arrest of U., a Russian citizen of Chechen origin.
At around 2 p.m., on 18 July 2000, during a telephone conversation with employees of the Moldovan Information and Security Service, one of the organisation’s telephone lines was suddenly cut off. The second telephone line was cut off shortly afterwards. The applicant organisation requested assistance from the repairs unit of the telecommunications company, Moldtelecom, but its request was refused. The head of the repairs unit explained that the lines had been cut off because a telephone booth was being repaired. Several members of the applicant organisation went to the booth in question, but found nobody there. The telephone lines started functioning again at 4.30 p.m.
On 19 July 2000 the leader of the applicant organisation lodged a petition with Moldtelecom asking why its telephone lines had been cut off. On the same date he lodged petitions with the Information and Security Service, the Ministry of Internal Affairs, the Special Commission for the Control of the Special Services of Parliament and the General Prosecutor’s Office seeking information about a possible interception of the communications of the applicant organisation in general and in particular between 13 and 16 July 1999 and between 17 and 19 July 2000.
In a letter dated 28 July 2000 Moldtelecom informed the applicant organisation that it had intervened at the request of the applicant organisation at 12.53 a.m. on 18 July 2000 and that at 5.37 p.m. on the same day the problem regarding the organisation’s two telephone lines had been fixed.
On 4 August 2000 the Information and Security Service replied that it was entitled to carry out operational investigative activities under the relevant domestic law, subject to the scrutiny of Parliament, the domestic courts and the prosecuting authorities. It noted, finally, that the applicant organisation had never been subjected to any operational investigative measures.
On 8 August 2000 the Prosecutor General’s Office stated that it never issued an authorisation for the conduct of operational investigative measures in respect of the applicant organisation or its members.
On 21 August 2000 the Ministry of Internal Affairs informed the applicant organisation that all the operational investigative measures were carried out by them in order to combat organised crime and in respect of specific suspected persons. No such measures were carried out in respect of the applicant organisation.
On 28 September 2000 the Speaker of the Parliament noted that, according to the information received from the Information and Security Service, the applicant organisation had never been subjected to any operational investigative measures.
The applicant organisation complained that, between 17 and 19 July 2000, its telephone communications were intercepted, which constituted a violation of Article 8 of the Convention. They also complained that the Moldovan legislation did not contain sufficient safeguards against abusive interception of telephone communications.
After the communication of the present application to the respondent Government, the applicant organisation failed to submit observations on the admissibility and merits of the case within the time-limit indicated by the Court. On 14 June 2004 the President of the Fourth Section of the Court, to which the case had been allocated, decided that the observations submitted by the applicant organisation outside the time-limit indicated by the Court should not be included in the case file for the consideration of the Court.
On 24 May 2005 the applicant organisation submitted supplementary observations on the case in response to the Court’s additional questions addressed to the parties.
On 17 March 2009 the Court decided that the merits of the application should be considered at the same time as its admissibility, in accordance with Article 29 § 3 of the Convention. The applicant organisation was invited to submit by 16 April 2009 any further written observations which it wished to file together with its claims for just satisfaction. The applicant organisation did not comply with the time-limit and no further observations or claims for just satisfaction have been received.
On 8 October 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. The text of their letter to the Court read as follows:
“Taking account [of the Court’s findings in Iordachi and Others v. Moldova (no. 25198/02, 10 February 2009) where the Court found that the quality of the legislation concerning interception of telephone communications before 2003 did not meet the requirements of Article 8 of the Convention] and of the fact that the applicant organisation has failed to submit its claims for just satisfaction and to furnish any plausible explanation for doing so – a fact which would prevent the Court from awarding it any amounts in this respect – the Government makes the following declaration:
The Government acknowledge that there was an infringement of the applicant’s rights guaranteed by the Convention because the Moldovan law does not provide adequate protection against abuse of power in the field of interception of telephone communications.
However, the Government consider that the simple acknowledgment of the violation of the applicant’s rights would constitute sufficient just satisfaction [...]
Thus, in view of the specific circumstances of the present case, and of the fact that after the delivery of the judgment in Iordachi and Others v. Moldova there have already been initiated consultations with different State authorities and the civil society in order to amend the legislation in this respect, and additionally to the express acknowledgement that there was a violation of the applicant’s rights, the Government ask the Court to strike the present application out of its list of cases.”
In a letter of 23 October 2009 the applicant’s representative welcomed the Government’s initiative to align the national legal framework concerning the interception of telephone communications to Convention standards. However, he disagreed with the Government’s proposal to strike-out the case because, in his view, a judgment on the merits of the case would “serve as an additional argument and impetus for the full realisation of the State policy in the field”.
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, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).
Having regard to the nature of the admissions contained in the Government’s unilateral declaration of 8 October 2009 and to the findings in Iordachi and Others v. Moldova (cited above), as well as to the applicant organisation’s less than vigorous pursuit of the case including its failure to submit observations in respect of just satisfaction, 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 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.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President