European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 5822/04
by Anton BEJAN
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 6 January 2009 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 application lodged on 28 January 2004,

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 thereto,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anton Bejan, is a Moldovan national who was born in 1960 and lives in Chişinău. He was represented before the Court by Mr Vitalie Iordachi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

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

Between 1 November 1983 and 14 May 1990 the applicant was an employee of the Ministry of the Interior (“the Ministry”).

Between 1990 and 2002 the applicant was elected to Parliament and then served as a judge.

On 19 February 2002 he requested the Ministry to reinstate him. Following the Ministry's refusal, he brought an action seeking reinstatement, the recognition of his seniority for the period of his elective office and payment of salary from 19 February 2002.

By a final judgment of 15 October 2003 the Supreme Court of Justice ruled in favour of the applicant and ordered the Ministry to reinstate him, to include the period between 1990 and 2002 in the calculation of his seniority and to pay his outstanding salary of 7,978 Moldovan lei (MDL) (the equivalent of 510 euros (EUR) at the time).

On 19 November 2003 the applicant sent the judgment to the Ministry for enforcement.

On 10 December 2003 a bailiff ordered the Ministry to enforce it within five days. Since the Ministry did not comply, on 17 December 2003 the bailiff lodged an action with the Centru District Court requesting that sanctions be taken against the Minister of the Interior for non-enforcement of a final judgment. The outcome of the proceedings is unknown.

On 26 December 2003 the Minister of the Interior enforced the judgment in the part relating to the applicant's reinstatement and recognition of his seniority. Following a request of the applicant, on the same date the Minister issued a decision and dismissed him.

On 22 July 2004 the Ministry paid the applicant MDL 7,978.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that his right of access to court had been breached by the belated enforcement of the judgment of 15 October 2003.

The applicant also alleged that the belated enforcement had violated his right to protection of property guaranteed by Article 1 of Protocol No. 1 to the Convention.

THE LAW

On 3 December 2007 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]:

Recognise that there has been an interference with the applicant's rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of the belated enforcement of the judgment of 15 October 2003.

[...] offer to pay [to Mr Anton Bejan] 1,100 Moldovan lei (66 euros) in respect of pecuniary damage, 500 euros in respect of non-pecuniary damage and 900 euros in respect of costs and expenses incurred before the Court. Other expenses will be reimbursed on presentation of justifying documents.

The sums will be payable within three months of the date of a decision taken by the European Court of Human Rights to strike the application out.”

The applicant requested the Court to reject the Government's proposal on the basis that he wanted the examination of his case to continue and to have a judgment delivered. In particular he claimed that the pecuniary damage should be assessed at EUR 88.3, non-pecuniary damage at EUR 2,000 and costs and expenses at EUR 1,200.

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, [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, see Ungureanu v. Moldova, no. 27568/02, § 39, 6 September 2007), 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