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European Court of Human Rights
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GUSAN v. MOLDOVA - 22539/05 [2010] ECHR 1363 (28 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1363.html
Cite as:
[2010] ECHR 1363
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FOURTH
SECTION
CASE OF
GUSAN v. MOLDOVA
(Application
no. 22539/05)
JUDGMENT
(just
satisfaction)
STRASBOURG
28
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gusan v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 7 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22539/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Ms Vera Gusan (“the
applicant”), on 31 May 2005. The application was dealt with
simultaneously with applications nos. 476/07,
17911/08 and 13136/07 and formed part of the overall case of Olaru
and Others v. Moldova (nos. 476/07,
22539/05, 17911/08 and 13136/07, 28 July 2009).
The
applicant was represented by Mr F. Nagacevschi, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
The
applicant complained under Article 6 § 1 and under Article 1 of
Protocol No. 1 to the Convention about the non-enforcement of a final
judgment in her favour.
In
a judgment delivered on 28 July 2009 (“the principal
judgment”), the Court held that there had been a violation of
the applicant's rights provided for by Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the
Convention as a result of the non-enforcement of a final judgment
(see Olaru and Others v. Moldova, cited above).
Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue.
THE FACTS
The
applicant, Ms Vera Gusan, is a Moldovan national who was born in 1955
and lives in Chişinău.
Together
with her three children and a nephew, the applicant lived in a rented
apartment measuring sixteen square metres, which was part of a bigger
house.
On
an unspecified date, a third party instituted proceedings against the
Chişinău Municipal Council for the restitution of the house
in which the applicant's apartment was located, in accordance with
Law No. 1225-XII “on the rehabilitation of the victims of
the political repression committed by the totalitarian communist
occupying regime”.
On
22 July 1998 the Centru District Court found in favour of the third
party and ordered the eviction of the applicant from her apartment.
At the same time, in accordance with the provisions of the same law,
the court ordered the Municipal Council to provide the applicant with
alternative rented accommodation in accordance with the provisions of
the Housing Code. According to the latter provisions, each member of
the applicant's family had the right to rented accommodation of at
least nine square metres.
The
judgment of 22 July 1998 has not been enforced to date.
On
28 July 2009 the Court examined the merits of the present case within
the framework of Olaru and Others v. Moldova
(cited above) and found a violation of Article 6 and Article 1
of Protocol No. 1 to the Convention.
THE LAW
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
The
applicant did not make any pecuniary claim under the head of
pecuniary damage, but asked the Court to oblige the Government to
enforce the judgment in her favour within six months.
The
Government submitted that they were aware of their obligation to
enforce the judgment in favour of the applicant and that they were
doing their best to have it enforced as soon as possible. However,
they expressed doubt as to the time-limit proposed by the applicant
and explained that in the current situation it could be difficult to
provide the applicant with rented accommodation in such a short
period of time.
The
Court sees no reason to doubt that the Government will put an end to
the violation found above. In this respect the Court points out that
under Article 46 of the Convention the High Contracting Parties have
undertaken to abide by the final judgments of the Court in any case
to which they were parties, execution being supervised by the
Committee of Ministers. It follows, among other things, that a
judgment in which the Court finds a breach imposes on the respondent
State, inter alia, to choose, subject to supervision by the
Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in their domestic legal order to
put an end to the violation found by the Court and to redress so far
as possible the effects (see, by analogy, Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR
2000 VIII). The Court therefore leaves it to the Committee of
Ministers to ensure that the Moldovan Government, in accordance with
their obligations under the Convention, adopts the necessary measures
consistent with the Court's conclusions in the principal judgment.
B. Non-pecuniary damage
The
applicant claimed 9,000 euros (EUR) for non-pecuniary damage.
The
Government submitted that the amount was excessive in view of the
Court's case-law in cases concerning non-enforcement of final
judgments.
The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the violations found
in the principal judgment. Deciding on an equitable basis, the Court
awards the applicant EUR 3,000 for non-pecuniary damage.
C. Costs and expenses
The
applicant also claimed EUR 585 for the costs and expenses incurred
before the Court.
The
Government contested the amount and argued that it was excessive.
The
Court awards the amount claimed in full.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR 585
(five hundred and eighty-five euros) in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
Moldovan lei at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 28 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy Registrar President
