FOURTH SECTION
DECISION
Application no. 10722/02
by Leonid BOXAN
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 10 May 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 14 November 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 of friendly settlement of 26 May 2005 received from the parties.
Having deliberated, decides as follows:
THE FACTS
The applicant was born in 1916 and lives in Chişinău.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his father were victims of political repression during the Soviet regime. At the beginning of the 1990s the Moldovan Parliament enacted a law which allowed the victims of Soviet repression to claim back their confiscated property.
In 1999 the applicant requested the return of his parents’ house, but the Local Council rejected this request.
The applicant brought an action against the Local Council concerning the latter’s refusal to return his family’s house.
On 30 September 1999 the Chişinău Regional Court found for the applicant. It recognised his property right over two out of four apartments in the house and ordered the Local Council to evict the tenants and provide them with other apartments. On 1 August 2000 the Court of Appeal upheld that judgment. On 20 December 2000 the Supreme Court of Justice also upheld that judgment. That judgment was final and enforceable.
The applicant obtained an enforcement warrant which the Bailiff failed to enforce.
The applicant made at least four written requests to the Local Council asking for the execution of the judgment of 30 September 1999. The Local Council replied each time that it was unable to execute it because of lack of funds and alternative accommodation for the occupants of the apartments.
The applicant made at least three written requests to the Bailiff of the Centru District Court, asking him to enforce the judgment of 30 September 1999 (namely, on 10 January, 6 November 2001 and 27 May 2002).
On 5 July 2002 the Judgment Enforcement Department of the Ministry of Justice replied in a letter that the judgment of 30 September 1999 could not be enforced due to lack of alternative accommodation for the occupants of the apartments.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention, about the non-enforcement of the judgment of 30 September 1999 considering that his right to have his civil rights determined by a court within a reasonable period of time had been violated.
2. The applicant also alleged that because of the non-enforcement of the judgment of 30 September 1999 he was unable to enjoy his possessions and thus his right to protection of property under Article 1 of Protocol No. 1 to the Convention had been violated.
PROCEDURE
On 11 May 2004, the Court invited the Government to make written observations on the application.
By a letter dated 1 July 2005 the applicant informed the Court of a friendly settlement agreement signed by him and the Local Council on 26 May 2005 and confirmed by a court on the same day. The applicant acted on the advice of his lawyer.
The text of the agreement submitted by the parties included the following clauses:
“The Parties hereby agree as follows:
Leonid Boxan waives his right to have executed the writ of execution no. 2/137 of 30 September 1999, and by implication the Chişinău Regional Court’s judgment of 30 September 1999, concerning the return of apartments 3 and 4 in a house at 13 Anton Crihan, in the city of Chişinău, together with the eviction of the tenants and the provision of new accommodation. Furthermore, Leonid Boxan waives any pecuniary claims (pretenţii materiale), including before the European Court of Human Rights, in respect of redress for damage caused by the late execution of the court judgment.
For its part, the City Hall of Chişinău undertakes to pay an amount of USD 55,000 (fifty-five thousand United States dollars), to be converted into Moldovan lei at the exchange rate of the National Bank of the Republic of Moldova on the date of payment, being the sum awarded by the Chişinău Municipal Council’s decision of 17 March 2005 in consideration of the change in the conditions of execution of the court judgment and in respect of the friendly settlement.
...
Both parties are apprised of the effects and consequences of the friendly settlement agreement.”
In his letter of 1 July 2005 the applicant withdrew his claim for pecuniary damage, having received the amount indicated in the agreement. However, he claimed that the agreement did not refer to the non-pecuniary damage or to costs and expenses, which were still an issue to be decided by the Court.
The Government submitted that, following the conclusion of the friendly settlement agreement with the applicant and the payment of the sum agreed on therein, the applicant had lost his status as a victim of a violation of his rights. They asked the Court to strike the application out of its list of cases.
THE LAW
The Court recalls 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 in particular to strike a case out of its list 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 notes that the applicant has agreed to settle his claims on the basis of payment of USD 55,000 and signed an agreement in this respect, acting on the advice of his lawyer. However he later refused to abide by the terms of the agreement, by interpreting it as not constituting a final settlement of the case but only as settlement of the claims for pecuniary damage.
The Government submitted that the term “pecuniary claims” (pretenţii materiale) was normally interpreted in a broad sense to include any claims for compensation and not just “pecuniary damage” within the meaning of Article 41 of the Convention. Moreover, these “pecuniary claims” were based, in accordance with the agreement, on “damage caused”, which therefore did not specify that only “pecuniary damage” was concerned.
The Court considers that the agreement, making express reference to the procedure before the Court, is sufficiently clear to be considered as including a final settlement of the case in its entirety. The applicant was, moreover, represented by his lawyer and was fully aware of the consequences of signing the friendly settlement agreement. Finally, the sum of money agreed upon appears to be reasonable under the circumstances.
In these circumstances, the Court considers that it is no longer justified to continue the examination of the application under Article 37 § 1 (c) of the Convention (see Paritchi v. Moldova (dec.), no. 54396/00, 1 March 2005). It is satisfied, having regard to the agreement reached, that respect for human rights does not require the continued examination of the application. Accordingly, the case should be struck out of the list and the application of Article 29 § 3 to it discontinued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy