FOURTH SECTION
DECISION
Application no. 24251/07
by Mihai CARCEA
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 14 December 2010 as a Committee composed of:
Ljiljana Mijović, President,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 May 2007,
Having regard to the declaration submitted by the respondent Government on 27 September 2010 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 application was lodged by Mr Mihai Carcea, a Moldovan national who was born in 1967 and lives in Lopatnic. He was represented before the Court by Mr I. Ţurcanu, a lawyer practising in Edineţ. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The applicant worked for a private agricultural company I. On 23 July 2007 he was ordered by I.’s director (C.I.) to repair a tractor. On the same day the applicant asked for a contract to be signed between him and I. and for an increase of his salary for working extra hours.
Also on 23 July 2007 C.I. was informed of the applicant’s request and allegedly approached the applicant and hit him in the face. The applicant was admitted to a hospital with a diagnosis of head trauma. That diagnosis was later confirmed by a forensic doctor’s certificate dated 23 July 2006 and by the hospital in a certificate dated 1 August 2006. He spent almost a month in the hospital.
Following complaints lodged by the applicant and C.I., administrative proceedings were initiated: against the applicant for insulting C.I. and against the latter for hitting the applicant.
In a letter dated 2 September 2006 the Labour Inspection Authority (“the LIA”) informed the applicant that the incident of 23 July 2007 could be considered as a work-related accident and was under investigation by that authority.
At the court hearing of 14 September 2006 the applicant asked for the adjournment of the examination of the case pending the results of the LIA investigation. The court refused that request because the investigation had no relevance for the administrative proceedings under examination. On the same day the court adopted a decision, finding that the applicant had insulted C.I. and that the latter had hit the applicant. Each of the parties was sentenced to pay a fine of 300 Moldovan lei (MDL) (equivalent to 17.7 euros (EUR) at the time). The parties appealed.
On 17 November 2006 the Bălţi Court of Appeal summoned the applicant to a hearing on 22 November 2006. According to the applicant, he received the summons in the morning of 22 November 2006 and could not reach the court (situated almost 100 km away) in time for the hearing, which had been scheduled for 9 a.m. He submitted to the court the letter in which he had received the summons. The letter had several postal stamps on it, including one of the Bălţi postal office with the date 17 November 2006 on it and another one of the Edineţ postal office, with the date 21 November 2006 on it. The applicant added that he lived in a village in the Edineţ region and that it took an extra day for the letter to arrive from Edineţ to his village.
On 22 November 2006 the Bălţi Court of Appeal examined the case in the applicant’s absence. It upheld the lower court’s judgment, but reduced the fine imposed on the applicant to MDL 140 (EUR 8.3).
The applicant twice asked the Prosecutor General’s Office to initiate a re-examination of the case, but this was refused.
COMPLAINTS
The applicant complained that he had not been summoned in time for the hearing of the Court of Appeal, that the courts had not taken into consideration all of his arguments and that the Prosecutor General’s Office had refused to ask for the annulment of the final judgment.
THE LAW
1. The Government’s unilateral declaration concerning the complaint about the right of access to court
The applicant complained of the failure to summon him in due time to the hearing of the Bălţi Court of Appeal.
He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
By letter dated 27 September 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue 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 agree that the applicant’s complaint under Article 6 § 1 of the Convention and the circumstances of the case do not essentially [differ] from the Court’s findings in the case of Ziliberberg v. Moldova, no. 61821/00, 1 February 2005.
Thus, the Government, having analysed the Court’s case-law, make the following unilateral declaration: the Government acknowledge that there was an infringement of the applicant’s right guaranteed by Article 6 § 1 of the Convention because the domestic courts [had] failed to summon him in due time to attend the hearings.
... the Government wish to note that the alleged violation was fully remedied by the domestic judicial authorities, which delivered [a] judgment favourable to the applicant [reference to the judgment of the Supreme Court of Justice adopted on 28 April 2010]. In the meantime the domestic court ordered a full rehearing of the applicant’s case with his attendance, therefore fulfilling his right to [a] fair trial as [guaranteed under] Article 6 of the Convention.
... According to the specific circumstances of the present case, the Government propose the global sum of EUR 1,500 (one thousand five hundred euros) in compensation for non-pecuniary damage, as well as for costs and expenses.
The Government declare that the above-mentioned sum will be converted into Moldovan lei at the rate 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. ...”
In a letter of 29 October 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was low and claimed EUR 5,010.
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”.
It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) 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 carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Moldova, its practice concerning complaints about the violation of one’s right of access to a court, in particular the requirement of summoning the parties to the proceedings when the law provides for their right to be present at the hearing (see, for instance, Ziliberberg v. Moldova, no. 61821/00, §§ 37-42, 1 February 2005; Guţu v. Moldova, no. 20289/02, §§ 51-54, 7 June 2007; Russu v. Moldova, no. 7413/05, §§ 19-28, 13 November 2008; and Masaev v. Moldova, no. 6303/05, §§ 16-18, 12 May 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded 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)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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, the Court strikes this part of the application out of the list.
2. Other complaints under Article 6 of the Convention
The applicant complained of the alleged failure of the domestic courts to take into account all his arguments and the refusal of the Prosecutor General’s Office to ask for the annulment of the final judgment.
Having analysed the judgments complained of, the Court does not see any appearance of a violation of Article 6 of the Convention, except for the failure to summon the applicant in due time, dealt with above. It also notes that in any event on 28 April 2010 the Supreme Court of Justice quashed the judgments complained of and ordered a full rehearing of the case, which is pending before the domestic courts.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention insofar as it relates to the complaint regarding denial of access to a court under Article 6 § 1 of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıLjiljana Mijović
Deputy RegistrarPresident
Full & Egal Universal Law Academy