THIRD SECTION
DECISION
Application no. 61635/08
Vasile BAGRIN
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 16 October 2012 as a Committee composed of:
Alvina Gyulumyan, President,
Ján Šikuta,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 4 December 2008,
Having regard to the declaration submitted by the respondent Government on 13 January 2012 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Vasile Bagrin, is a Moldovan national, who was born in 1962 and lives in Baccialia.
2. The Moldovan Government (“the Government”) were represented by Mr L. Apostol, Agent for the Government, ad interim.
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
4. In 1996 the applicant was arrested and detained for two weeks on suspicion of theft. Later the police discovered the real perpetrators and the applicant was released from detention. Although the criminal proceedings against him were discontinued, the applicant was never formally discharged or acquitted and the case-file was destroyed several years later. The perpetrators of the theft were convicted.
5. On an unspecified date the applicant attempted to obtain a criminal record (cazier juridic) from the Ministry of Internal Affairs in order to apply for a passport. His attempt was unsuccessful due to a reference in the data base of the Ministry of Internal Affairs that criminal proceedings were pending against him. As a result, the applicant contested the Ministry’s refusal before the courts and was successful. He was issued with a criminal record in which it was stated that the applicant had never been convicted of a criminal offence and was not wanted by the police.
6. After obtaining the criminal record the applicant applied for a passport. His application was rejected, however, on the basis of a legal provision prohibiting persons against whom criminal proceedings were pending from leaving the country. The applicant unsuccessfully requested the Ministry of Internal Affairs to delete the record. Consequently, the applicant initiated new proceedings against the Agency responsible for issuing passports and the Ministry of Internal Affairs requesting that his record be erased from the Ministry’s data base, that he be issued with a passport and that he be compensated for the damage suffered.
7. On 20 March 2008 the Chişinău Court of Appeal upheld the applicant’s action and ordered the Ministry of Internal Affairs to pay the applicant 5,000 Moldovan Lei (MDL) for non-pecuniary damage. The court dismissed the Ministry’s objection that the record could not be erased in the absence of a formal decision concerning the applicant’s discharge or acquittal. In so doing the court found that no such decision existed and, moreover, that the case file had been destroyed. Furthermore, the applicant was in possession of a clean criminal record issued by the same Ministry of Internal Affairs. The Ministry of Internal Affairs appealed against the judgment.
8. On 5 June 2008 the Supreme Court of Justice partly upheld the Ministry of Internal Affairs’ appeal and dismissed the applicant’s action. It also reduced the amount of non-pecuniary damage to be paid by the Ministry of Internal Affairs to MDL 500. The Supreme Court held that according to an instruction issued jointly by the Ministry of Internal Affairs and the Ministry of Justice dated 4 May 2007, information concerning criminal prosecutions for offences of the kind of which the applicant had been suspected in 1996 was to be recorded and kept indefinitely. Since the case file in the applicant’s case had been destroyed and it was impossible to determine the reasons for the discontinuance of the criminal investigation against him, the Ministry of Internal Affairs was entitled to keep the records.
COMPLAINTS
9. The applicant complains under Articles 5 and 6 of the Convention that his detention had been unlawful and that the proceedings which ended with the judgment of the Supreme Court of Justice of 5 June 2008 had been unfair. He also complains under Article 2 of Protocol No. 4 that his freedom of movement was breached and that he cannot obtain employment as a result of the Ministry of Internal Affairs’ keeping a record of his criminal prosecution in 1996. He also submitted that he had been arrested once on suspicion of theft on account of the record and expressed the view that he risked further discriminatory treatment due to the record.
THE LAW
A. The complaint under Article 8 of the Convention
10. The applicant complained under Article 2 of Protocol No. 4 that his freedom of movement was breached. The Court considered it more appropriate to examine this part of the application under Article 8 of the Convention.
11. After the failure of attempts to reach a friendly settlement, by a letter of 13 January 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows:
“The Government acknowledge that there has been a breach of the applicant’s rights guaranteed by Article 8 of the Convention [...]
The Government [...] propose the following sums of money as just satisfaction: EUR 2,500 to cover any and all non-pecuniary damage and EUR 600 to cover any and all costs and expenses incurred.
The Government declare that the above sums will be converted into Moldovan Lei at the date applicable on the date of payment and free of any taxes that may be applicable. It 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 this sum within the said three-month period, the Government undertake to pay simple interest on it, 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. The payment will constitute the final resolution of the case and of any other claims that may appear from the circumstances of the present case.
In conclusion, the Government invite the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention.”
12. In a letter of 3 July 2012 the applicant expressed the view that the Government’s unilateral declaration should not be accepted by the Court because he had been held in custody for fourteen days during the criminal proceedings against him and because the Ministry of Internal Affairs held the information about his criminal proceedings in its database for eleven years.
13. 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”.
14. 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.”
15. The Court also notes that under certain circumstances, it may strike out an application or part thereof 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).
16. Having regard to the nature of the admissions contained in the Government’s unilateral declaration of 13 January 2012 and to the amount of compensation proposed by the Government, which is consistent with the Court’s case-law in similar cases, the Court considers that it is no longer justified to continue the examination of this part 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)).
17. 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 this part of the application (Article 37 § 1 in fine).
Accordingly it should be struck out of the list.
B. Remaining complaints
18. In so far as the applicant’s complaint under Article 5 of the Convention is concerned, the Court notes that this complaint was lodged more than six months after the alleged breach took place, and therefore it must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. As to the applicant’s complaint concerning the fairness of the civil proceedings, the Court considers them to be unsubstantiated and notes that there is nothing in the file to suggest that the provisions invoked by the applicant have been violated. Accordingly, 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 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention 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 in so far as it relates to Article 8 of the Convention;
Declares the remainder of the application inadmissible.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy