AS TO THE ADMISSIBILITY OF
by Ecaterina RUSU
The European Court of Human Rights (Fourth Section), sitting on 17 February 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 August 2001,
Having regard to the declarations 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 applicant, Mrs Ecaterina Rusu, is a Moldovan national who was born in 1928 and lives in Chişinău. She is represented before the Court by Mr James McSweeney, a lawyer practising in Dublin. The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr Vitalie Pârlog.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the 1940s the applicant's family was persecuted by the Soviet authorities and their house located in Chişinău was nationalised. On an unspecified date in 1995 she brought an action against the Chişinău Local Council seeking its restitution.
On 20 December 1995 the Centru District Court upheld her action and ordered restitution of the house by the Local Council. That judgment was not appealed against and became enforceable fifteen days later.
On 30 January 1996 the Local Council issued a decision according to which the applicant was reinstated as the owner of the house. The decision also ordered the Land Registry to issue her with an ownership certificate. On 30 April 1996 the decision was enforced.
Because the thirteen apartments of the house were occupied by tenants and the Local Council did not evict them, the applicant initiated new court proceedings. By a final judgment of 21 June 1996 the Centru District Court ordered the Local Council to evict the occupants of the house and to offer them alternative accommodation. The judgment, however, remained unenforced.
The applicant complained to various authorities but was not able to obtain possession of her house.
Following a request by the Prosecutor General, on 19 September 2001, the Supreme Court of Justice quashed the final judgment of 20 December 1995 and ordered a full re-hearing of the case.
On 10 June 2002 the Centru District Court dismissed the applicant's claim to the house.
On 23 October 2002 the Chişinău Regional Court partly quashed that judgment, finding that the applicant had the right to a part of the house.
On 6 February 2003 the Court of Appeal quashed the judgment of the Chişinău Regional Court and upheld the judgment of 10 June 2002. That judgment was final.
Following the communication of the case by the Court, on 18 January 2008 the Government Agent asked the Prosecutor General to lodge a request with the Supreme Court of Justice for its judgment of 19 September 2001 to be quashed and for the request for annulment proceedings to be discontinued. He considered that the quashing of a final judgment in favour of the applicant following the annulment proceedings had breached the applicant's rights under the Convention.
On an unspecified date in 2008, the Deputy Prosecutor General complied with the Government Agent's request. He lodged a revision request relying on section 449 § 1 (j) of the Code of Civil Procedure and indicated that the applicant and the Government intended to conclude a friendly settlement agreement.
By a judgment of 16 July 2008 the Supreme Court of Justice dismissed the request for revision on the ground that the parties had not submitted any evidence of the alleged friendly settlement.
The applicant complained under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention that her right of access to court had been breached by the failure to fully enforce the final judgment of 20 December 1995.
In her letter of 17 March 2003 she also complained under the same articles about the unlawful quashing of that judgment by the Supreme Court of Justice on 19 September 2001.
The applicant further contended that the non-enforcement of the judgment in her favour and her inability to live in her house had breached her rights under Articles 3 and 8 of the Convention.
A. The Government's declaration
On 17 November 2005 and 2 March 2006 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 declarations provided as follows:
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 non-enforcement of the judgment of 20 December 1995 until 19 September 2001, and from 19 September 2001 to date, due to its quashing by the Supreme Court of Justice [...].
In respect of pecuniary damage, the Government offer to pay [to Ms Ecaterina Rusu], within three months of the date of a decision taken by the European Court of Human Rights to strike the application out, the equivalent of the value of the house.
In respect of non-pecuniary damage [...] the Government offer to pay the equivalent in national currency of 6,000 euros, within three months of the date of a decision taken by the European Court of Human Rights to strike the application out.
In respect of costs and expenses the Government offer to pay 100 euros as well as other expenses, on presentation of justifying documents.”
The applicant requested the Court to reject the Government's proposals on the basis that she wanted the examination of her case to continue and to have a judgment delivered. In particular she claimed that the judgment had not been enforced for ten years and that the pecuniary damage should be assessed at 805,161 euros (EUR), representing the income she could have obtained had she rented out the house. She also claimed EUR 110,000 in respect of non-pecuniary damage and EUR 5,675 for costs and expenses.
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).
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 and the quashing of final judgments in favour of the applicants and the judgment beneficiary's right to the peaceful enjoyment of possessions (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; Roşca v. Moldova, no. 6267/02, 22 March 2005; Nistas GmbH v. Moldova, no. 30303/03, 12 December 2006). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which has depended on the particular features of the case.
The Court notes that the applicant's complaints regarding the quashing of the final judgment of 20 December 1995 raise difficult issues as to the applicant's compliance, with the six-month rule contained in Article 35 § 1 of the Convention. It further notes that on 15 June 2006 the Court requested the parties to provide it with evidence of the market value of the disputed house, pursuant to Rule 49 §§ 1 and 3 (a) of the Rules of Court. According to the information submitted by the Government on 13 July 2007, the value of the house was 1,271,915 Moldovan lei (EUR 75,809 at the time). The applicant failed to submit the evidence within the time-limit fixed by the Court.
Having regard to the nature of the admissions contained in the Government's unilateral declaration, as well as the amount of compensation proposed by the Government (EUR 75,809 in respect of pecuniary damage, EUR 6,000 in respect of non-pecuniary damage and EUR 100 for costs and expenses), 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 in so far as it relates to the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (Article 37 § 1 in fine).
B. The complaints under Articles 3 and 8 of the Convention
In so far as the applicant's complaints under Articles 3 and 8 of the Convention are concerned, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration in respect of the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases the part of the application concerning the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza