European Court of Human Rights
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Cite as: [2010] ECHR 214
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FOURTH SECTION
DECISION
Application no.
29729/07
by Nadejda SANDU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 2 February 2010 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 29 June 2007,
Having regard to the declaration submitted by the respondent Government on 31 March 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply thereto,
Having regard to the additional declaration submitted by the respondent Government on 28 October 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Nadejda Sandu, is a Moldovan national who was born in 1949 and lives in Chişinău. She was represented before the Court by Mr V.Tarnovschi, 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.
The applicant initiated proceedings against her employer, the Ministry of Education, seeking reinstatement in her position and pecuniary damage for the period of forced inactivity.
On 15 July 2005 the Dubăsari District Court found in the applicant’s favour and ordered the employer to reinstate her. It also awarded her 10,795 Moldovan lei (MDL) in pecuniary damage, MDL 491 in non-pecuniary damage and MDL 3,377 for costs and expenses. This judgment was immediately enforceable.
The applicant was reinstated in her functions, but the compensation awarded by the court was not paid to her. Both parties appealed.
On 16 August 2005 the applicant was again dismissed from her position.
On 13 October 2005 the Chişinău Court of Appeal quashed the first instance judgment and increased the amount of pecuniary damage to MDL 13,940 and that of non-pecuniary damage to MDL 1,901 (the overall award’s equivalent in euro (EUR) was 1,273 at the relevant time).
By a final judgment of 12 April 2006, the Supreme Court of Justice rejected the appeal on points of law lodged by the employer und upheld the Court of Appeal’s judgment.
Despite attempts by the applicant to obtain enforcement, the final judgment in her favour has not been enforced to date.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that her right of access to court had been violated by the failure to enforce the judgments in her favour within a reasonable time.
2. The applicant also alleged that the failure to enforce the judgments in her favour had violated her right to protection of property as guaranteed by Article 1 of Protocol No. 1 to the Convention.
3. The applicant also alleged that she did not have at her disposal an effective remedy for her complaints under Article 6 § 1 and Article 1 of Protocol No.1 to the Convention, as required by Article 13 of the Convention.
THE LAW
The applicant complained about the non-enforcement of the final judgment in her favour. She relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No.1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions”.
On 20 February 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. The Government acknowledged that there was an infringement of the applicant’s rights guaranteed by the Convention on account of the non-enforcement of the judgment of 13 October 2005. They undertook to pay the applicant EUR 3,000 to cover any pecuniary and non-pecuniary damage as well as costs and expenses, which would be converted into Moldovan lei at the rate applicable on the date of payment, and free of any taxes that may be applicable. This sum would 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 this sum within the said three-month period, the Government undertook to pay simple interest on it, from the 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. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
By letter of 31 March 2009 the applicant’s representative expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. He requested the Court to reject the Government’s proposal on the basis that the applicant wanted the examination of her case to continue and to have a judgment delivered. In particular he claimed that the pecuniary damage should be assessed at EUR 14,495 and non-pecuniary damage at EUR 6,000.
In support of his claim he asked the Court to award the applicant compensation for inflation in a total amount of MDL 8,283 (EUR 570). He also informed the Court that the applicant had retired on 10 November 2006 and that as a result of non-enforcement the amount of the pension received by the applicant was less than the amount she would have received, had the judgment been enforced. In a letter of 17 April 2009, he assessed the amount of pension loss at MDL 454.
Finally, the applicant’s representative asked for default interest for the delay in payment of salary arrears, which he assessed at MDL 183,957 (EUR 12,652). In support of this particular claim he referred to a distinct set of proceedings instituted by the applicant against her employer in the aftermath of the final judgment of 14 February 2006, in which the domestic courts awarded the applicant MDL 183,957, but which are still pending.
On 11 May 2009 the Court communicated an additional complaint raised by the applicant under Article 13 of the Convention.
By letter of 28 October 2009, the Government amended the previous declaration by acknowledging additionally a breach of Article 13 of the Convention.
The Court notes that the subject matter of the present application is the continuing non-enforcement of the judgment of the Chişinău Court of Appeal of 13 October 2005.
In so far as the applicant asked for compensation for inflation and pension loss, the Court notes that this claim goes beyond the scope of the present application and it is open to the applicant to raise this issue before domestic courts. Should the outcome of such proceedings be unsatisfactory for the applicant, she will then be able to submit a new application to this Court (in which case the subject matter of the complaint would be different from the present application, which only concerns non-enforcement).
In so far as the applicant asked the Court to award her default interest for delay in payment and referred to the second set of proceedings mentioned above, which are still pending, the Court notes that these proceedings did not constitute the object of the application communicated to the Government on 10 October 2008. The Court notes that this issue goes beyond the scope of the present application and, more importantly, it has yet to be determined by the domestic courts. Nothing prevents the applicant from applying subsequently to the Court, should she consider it expedient to do so.
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).
Having regard to the nature of the admissions contained in the Government’s unilateral declarations of 31 March and 28 October 2009, as well as the amount of compensation proposed, which is consistent with the amounts awarded 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 declarations 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.
Lawrence Early Nicolas Bratza
Registrar President