FOURTH SECTION
DECISION
Application no. 36748/05
by Viorica BOGATU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 29 September 2005,
Having regard to the declaration submitted by the respondent Government on 12 February 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 15 July 2009 and the applicant's reply thereto,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Viorica Bogatu, is a Moldovan national who was born in 1957 and lives in Chişinău. She was represented before the Court by Mr V. Gribincea, 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 was a television journalist from the State Company “Teleradio-Moldova” (“the Company”), which, at the time, ran the only Moldovan public television channel and radio station with nationwide coverage.
In 2004, following numerous protests against censorship at the Company, the Government decided to re-organise the Company. A competition was organised for the purpose of recruiting journalists and, as a result, many journalists who had protested earlier against censorship were not selected. The applicant was one of the journalists who were not selected. The results of the competition were announced on 26 July 2004.
On 27 July 2004 approximately one hundred journalists from the Company organised a press conference in front of the headquarters of the Company. They expressed their discontent with the results of the competition and alleged that it was unfair and that the members of the jury were politically biased.
On the same date the Centru Police Station charged the applicant with the offence of active participation in an unauthorised demonstration.
On 8 October 2004 the Centru District Court found the applicant guilty and fined her 180 Moldovan lei (14 euros (EUR)).
The applicant appealed and argued, inter alia, that the fine constituted an unjustified interference with her right to freedom of assembly.
On 11 November 2004 the Chişinău Court of Appeal dismissed the appeal in the applicant's absence.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention that she had not been summoned to the hearing of her appeal.
2. She also complained under Article 11 of the Convention that the sanction imposed on her breached her right to freedom of assembly.
THE LAW
On 12 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 had an infringement of the applicant's right guaranteed by Article 6 § 1 of the Convention on account of the failure to summon her for the hearing of her appeal. They undertook to pay the applicant EUR 1,000 to cover any non-pecuniary damage and EUR 850 for 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. The Government did not admit to the existence of a violation of Article 11 of the Convention and asked the Court to declare this complaint inadmissible.
In a letter of 8 June 2009 the applicant expressed the view that the Government's unilateral declaration should not be accepted by the Court because they had not acknowledged a violation of Article 11 of the Convention. The applicant submitted arguments in support of her contention that there had been a breach of Article 11 in the present case.
On 15 July 2009 the Government amended their unilateral declaration and acknowledged also a breach of Article 11 of the Convention. They also proposed an increased amount of compensation of EUR 4,300 to cover any damage and costs and expenses.
In letters of 7 August 2009, 12 October 2009 and 11 February 2010 the applicant again expressed the view that the Government's declaration should be dismissed by the Court. The applicant argued, inter alia, that the declaration was not sufficient for erasing the record concerning her conviction, the Government had not undertaken to inform the Prosecutor General's Office, the Superior Council of Magistrates and the Ministry of Internal Affairs about the reasons for acknowledging a violation of her Convention rights, the Government had failed to take legislative measures in order to dispense organisers of spontaneous demonstrations from the obligation to notify the local authorities and, finally, the amount proposed for costs and expenses was insufficient.
In letters of 21 September and 4 December 2009 the Government submitted that according to the Law on the Government Agent, the Agent was obliged to inform the Prosecutor General, the Superior Council of Magistrates and other State bodies directly responsible for the violation of the Court's judgments and decisions in which a breach of the Convention was found or acknowledged. Therefore, it was redundant to stipulate such an undertaking in a unilateral declaration. The Government also pointed to the provisions of the Code of Administrative Offences according to which the record concerning administrative offences is cleared after one year if no other offences are committed during that time. They submitted that the applicant did not have any record as a result of the sanction imposed on her by the judgment of the Centru District Court of 8 October 2004. According to the Government, the new Law on Assemblies enacted in 2008 regulated the problem of spontaneous demonstrations. In particular, in section 3 it defined such demonstrations as: “assemblies ... in which it is not possible to follow the procedure of notification [to the local auhtorities].”
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 (preliminary issue) [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, to the arguments submitted by the applicant against the declarations and to the counter-arguments adduced by the Government, as well as to the amount of compensation proposed by the Government, which is consistent with the amounts awarded in similar cases (see Roşca and Others v. Moldova, nos. 25230/02, 25203/02, 27642/02, 25234/02 and 25235/02, § 49, 27 March 2008; Russu v. Moldova, no. 7413/05, § 32, 13 November 2008), 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
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy