European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 18675/04
by Vera CERNETCHI
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 30 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 23 April 2004,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Vera Cernetchi, is a Moldovan national who was born in 1951 and lives in Chişinău. She was represented before the Court by Mr Andrei Briceac, a lawyer practising in Corjova. 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.

The applicant was an employee of the Customs Department (“the Department”). In 2002 she retired. Since 7 March 2002 she had unsuccessfully requested her former employer to calculate and pay her a pension. Accordingly, on 26 July 2002 she initiated judicial proceedings against the Department.

By a judgment of 2 September 2002 the Court of Appeal ruled in favour of the applicant and ordered the Department to calculate and pay her a pension. The judgment was not appealed against and it became final and enforceable. On the same date the Court of Appeal issued an enforcement warrant, which was handed to a bailiff on 1 October 2002.

On 2 March 2003 a bailiff informed the applicant that the Department could not enforce the judgment of 2 September 2002 since no methodology had been set out for the calculation of the applicant’s pension.

Since the Director of the Department did not comply with the judgment of 2 September 2002, a bailiff instituted administrative proceedings against him. By a judgment of 6 May 2003 the Centru District Court found the Director of the Department guilty of the administrative offence of failure to enforce a final judgment and fined him 1,800 Moldovan lei (MDL) (112 euros (EUR) at the time).

By a letter of 21 June 2004, which was registered with the Bailiff’s Office on 5 July 2004, the Department informed the latter that the judgment in favour of the applicant could not be enforced since on 14 November 2003 the Parliament had adopted a new law according to which the pensions of former employees of the Department were to be calculated and paid by the Agency for Social Welfare (“the Agency”). On the same date, a bailiff informed the applicant that as soon as the methodology for the calculation of the pension was adopted, the Department would enforce the judgment in favour of the applicant.

In the meantime, on an unspecified date in 2004, the applicant requested the Agency to calculate and pay her a pension. Since on 25 February 2004 the Agency had dismissed her request, the applicant filed an action against the former with the Chişinău Court of Appeal. During the proceedings before the first-instance court, on 22 April 2004, the Parliament’s Committee for Social Welfare sent the Department and the Agency an explanatory letter concerning the calculation and payment of pensions to former employees of the Department and stated, inter alia, that:

“Taking into consideration the fact that the courts have adopted thirty-nine judgments according to which the Department has been ordered to calculate and pay pensions to former employees, these must be enforced, since according to Article 20 of the Constitution the enforcement of judgments is mandatory...”

By a letter of 10 May 2004 the Agency informed the applicant that it had calculated her pension and that it would be paid from 25 December 2003, following which the applicant dropped her action against the Agency. She nevertheless requested the Court of Appeal to pay her compensation for non-pecuniary damage suffered as a result of the belated payment of her pension.

By a judgment of the Chişinău Court of Appeal of 21 June 2004, the applicant’s claims for compensation for non-pecuniary damage were dismissed and the rest of the proceedings discontinued. The applicant appealed.

By a final judgment of 20 October 2004 the Supreme Court of Justice dismissed her appeal.

On 20 January 2004 the Agency informed the applicant that it had calculated her pension arrears for the period 2 March 2002 until 24 December 2003 and that the applicant had been paid MDL 13,244.04 (EUR 811.46).

On 1 December 2006 the applicant informed the Court that she had been paid her pension.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the belated enforcement of the judgment of 2 September 2002.

She also contended that the belated enforcement of the final judgment in her favour had infringed her rights under Articles 8 and 14 of the Convention.

THE LAW

On 31 July 2008 the Government informed the Court that on the same date the parties had signed a friendly-settlement agreement. They submitted to the Court a copy of the agreement according to which the Government had undertaken to pay the applicant, within three months from the date of the adoption of a strike-out decision by the Court, the equivalent in national currency of EUR 300 in respect of pecuniary damage, EUR 1,100 in respect of non-pecuniary damage and EUR 800 for costs and expenses. The Government requested the Court to strike the application out of the list of cases.

On 2 August 2008 the applicant also informed the Court that the parties had signed a friendly-settlement agreement along the above-mentioned lines and that she wished the Court to discontinue the examination of the application.

In a letter of 8 September 2008 the applicant confirmed the terms of the agreement of 31 July 2008; however, she informed the Court that, due to the subsequent depreciation in the exchange rate, she wished to be paid the above-mentioned amounts in the national currency at the exchange rate applicable on 31 July 2008.

The Court notes the voluntary nature of the agreement reached between the parties, which implies, inter alia, that both parties had accepted that fluctuations in the exchange rate could occur between the date of signature of the friendly-settlement agreement and the date of payment by the Government of the above-mentioned sums. It is not open to the applicant at this late stage to negotiate a change to the terms of the settlement which she freely entered into with the Government. The Court therefore is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President