European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 11610/06
by Sergiu AGATIEV
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 26 May 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 9 March 2006,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergiu Agatiev, is a Moldovan national who was born in 1969 and lives in Cocieri. He was represented before the Court by Mr A. Postica, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

A.  The circumstances of the case

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

On 7 June 2005 the applicant was found guilty of an administrative offence by the Dubăsari District Court and sentenced to an administrative fine amounting to 720 Moldovan lei (MDL, the equivalent of 46.5 euros at the time). No appeal was lodged and the decision became final.

The decision was sent for enforcement to the Dubăsari branch of the Enforcement Office (“the Office”). On several occasions the Office unsuccessfully tried to contact the applicant with a view to obtaining payment of the fine.

On 24 October 2005 the applicant’s brother informed the Office that the applicant was away and that he knew about the fine.

On 25 November 2005 the applicant visited the Office and was offered until 28 November 2005 to pay the fine. Since he had not received his salary in time, he could not pay within the time-limit set. Thereafter the Office asked the Dubăsari District Court to convert the administrative fine into a term of imprisonment.

On 16 December 2005 the court accepted the Office’s request and converted the fine imposed on the applicant into 30 days’ administrative imprisonment. The court noted, inter alia, that the applicant had refused to pay the fine and had asked for its conversion into a term of imprisonment. The applicant was present at the hearing and was arrested immediately thereafter.

On the same day the applicant asked for the suspension of enforcement of the decision pending the examination of his appeal in cassation which he intended to lodge against the decisions of 7 June and 16 December 2005. He also asked to see the text of the decision of 7 June 2005, which he claimed had never been brought to his notice. He finally requested the court to extend the time-limit for lodging his appeal against the decision of 7 June 2005.

On 19 December 2005 the Dubăsari District Court rejected the applicant’s request for the extension of the time-limit, finding that he had not submitted valid reasons for such an extension.

According to the applicant, his brother was initially not allowed to visit him in detention. He submitted one such request dated 20 December 2005, which bears the handwritten text of a refusal by the local police station, where the applicant was serving his sentence. The applicant claims that because of his isolation he was unable to immediately lodge an appeal in cassation against the decision of 16 December 2005. It was only after his brother had complained to a prosecutor, and following the latter’s intervention, that the applicant was able to meet his brother on 23 December 2005. On that date, he signed the appeal in cassation prepared by his brother and a lawyer.

On 23 December 2005 the applicant lodged appeals in cassation against the decisions of 7 June and 16 December 2005. In his appeal against the decision of 7 June 2005 he claimed that the court had not fully established the facts and that there was no evidence that he had committed an offence.

In his appeal against the decision of 16 December 2005 he noted, inter alia, that the first-instance court had failed to verify the Office’s statement that he had refused in bad faith to pay the fine. Moreover, the Office had not taken any steps to enforce the fine by seizing his assets. He also argued that the court had applied the Code of Administrative Offences despite the fact that the Enforcement Code had entered into force on 1 July 2005 which expressly provided that payment of administrative fines was to be enforced in accordance with the Enforcement Code. Moreover, under that Code the fine imposed on him (36 conventional units or MDL 720), could not have been transformed into 30 days of detention.

On 26 December 2005 the Dubăsari District Court rejected the applicant’s appeal against the decision of 7 June 2005, finding that he had lodged it outside the time-limit provided by law and had not submitted valid reasons for asking for an extension. That decision was final.

On 16 January 2006 the applicant was released from detention because he had served all 30 days of his sentence.

On 17 January 2006 the Chişinău Court of Appeal rejected the applicant’s appeal in cassation against the decision of 16 December 2005. The court recalled the essence of the decision and then upheld that decision, without giving any additional details. That decision was final. The applicant was not present at the hearing and found out about the decision some time later, when inquiring about his appeal in cassation.

COMPLAINTS

THE LAW

On 21 April 2009 the Court received the following agreement signed by the parties:

“The Parties to the present agreement:

Taking into account that application no. 11610/06 Agatiev v. Moldova is on the docket of the European Court of Human Rights, the applicant contending a violation of his rights guaranteed under Article 6 § 1 (...) of the European Convention for the protection of human rights and fundamental freedoms as a result of the failure to summon him to the hearing of the Chişinău Court of Appeal on 17 January 2006;

have agreed as follows:

1.  The Government of the Republic of Moldova agrees to pay to Mr Sergiu Agatiev EUR 850 (eight hundred and fifty euros) in compensation for pecuniary and non-pecuniary damage caused and EUR 450 (four hundred and fifty euros) for costs and expenses with a view to securing a friendly settlement agreement of the above-mentioned case. These amounts will be converted into Moldovan lei at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them, from 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.

2.  The payment will constitute the final resolution of the case.

3.  The applicant declares that all his claims were satisfied and will withdraw his application no. 11610/06 Agatiev v. Moldova lodged with the European Court and communicated to the Government on 15 December 2008.

4.  The applicant declares that he will not have any further claims of a pecuniary or non-pecuniary nature or for any other damage resulting from the circumstances of the present case.

5.  The parties will inform the Court of the agreement reached.”

The Court takes note of the friendly settlement reached between the parties. It 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). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

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

Lawrence Early Nicolas Bratza
Registrar President