FOURTH SECTION
DECISION
Application no. 77612/01
by Pavel BERZOI
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 4 March 2008 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
Stanislav Pavlovschi,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 20 February 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the declaration submitted by the respondent Government 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:
THE FACTS
The applicant, Mr Pavel Berzoi, is a Moldovan national who was born in 1943 and lives in Ungheni. 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.
In 1994 the applicant deposited money with a commercial bank. According to the contract concluded with the bank, the latter would pay annual interest of 185 per cent on that amount. However, the bank gradually reduced the interest rate over the years. The applicant disagreed with the changes and, after unsuccessful attempts to obtain the entire amount due, he initiated court proceedings.
By a final judgment of 2 March 2000 the Court of Appeal found in favour of the applicant and awarded him 4,186 Moldovan lei (MDL) (373.43 euros (EUR) at the time).
On 27 June 2000 the Deputy Prosecutor General lodged a request for the annulment of the judgment in favour of the applicant and for the dismissal of his claims.
On 30 August 2000 the Supreme Court of Justice upheld the Deputy Prosecutor General’s request in full.
Following the communication of the case by the Court, the Government Agent asked the Prosecutor General to lodge a revision request with the Supreme Court of Justice to quash its judgment of 30 August 2000 and to discontinue the request for annulment proceedings. He considered that the quashing of a final judgment in favour of the applicant had breached his rights under the Convention.
The Prosecutor General complied with the Government Agent’s request. He lodged a revision request, relying on Article 449 § 1 (j) of the Code of Civil Procedure. By a judgment of 21 January 2005 the Supreme Court of Justice upheld the Prosecutor General’s request for revision, quashed its judgment of 30 August 2000 and discontinued the annulment proceedings.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention about the quashing by the Supreme Court of Justice on 30 August 2000 of the final judgment in his favour as a result of the Deputy Prosecutor General’s requests for annulment.
THE LAW
On 26 November 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by 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]:
1. Recognise that there has been an interference with the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of the lodging of the Prosecutor General’s request for annulment and as a result of the fact that this was upheld by the Supreme Court of Justice.
2. [...] offer to pay 3,000 (three thousand) euros [to Mr Pavel Berzoi] in compensation for any pecuniary and non-pecuniary damage as well as costs and expenses.
This sum will be payable within three months of the date of a decision taken by the European Court of Human Rights to strike the application out. The payment will constitute the final resolution of the case.”
The applicant requested the Court to reject the Government’s proposal on the basis that he wanted the examination of his case to continue and to have a judgment delivered.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It notes that, under Article 38 § 2 of the Convention, friendly settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government on 4 September 2007 and was subsequently amended outside the framework of the friendly settlement negotiations.
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).
As to the circumstances of the instant case, the Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as regards the quashing of final judgments in favour of the applicants and the judgment beneficiary’s right to the peaceful enjoyment of possessions (see, among many others, Roşca v. Moldova, no. 6267/02, 22 March 2005; Nistas GmbH v. Moldova, no. 30303/03, 12 December 2006; and Josan v. Moldova, no. 37431/02, 21 March 2006). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which depended on the particular features of the case.
Having regard to the nature of the admissions contained in the Government’s unilateral declaration, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court’s awards in similar cases), 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, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously:
Takes note of the terms of the respondent Government’s declaration 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.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy