FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21367/04
by Anatol CEBAN
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 13 March 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 21 April 2004,
Having regard to the decision to apply the procedure under Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the letter from the parties dated 10 January 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anatol Ceban, is a Moldovan national who was born in 1952 and lives in Chişinău. He was represented before the Court by Mr V. Constantinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 September 2003 O.M. complained to the Ciocana police section of Chişinău about the applicant’s swearing at her during the meeting of their housing association on 29 August 2003.
On 10 September 2003 the applicant signed a document admitting that he had committed an administrative offence. He did not have his rights explained to him and he was not assisted by a lawyer.
On 25 September 2003 the Ciocana District Court found the applicant guilty of the administrative offence and ordered his detention for five days as punishment. The applicant claims that he made an oral request to have defence witnesses heard but that the request was rejected without any reasoning. At the same time, witnesses for the other party were heard, despite the applicant’s claim that they had not been present at the relevant meeting.
According to the court decision, it could be appealed within 10 days.
Before the 10-day period had expired, on 1 October 2003 the applicant was arrested by the police and escorted to the Ciocana police station, where he spent three days in detention. He claims that he was detained with persons arrested for serious offences, who smoked heavily, causing him severe health problems in the absence of ventilation and that there was very limited access to daylight since the windows had been blocked with perforated metal sheets. There was no toilet in the cell and a bucket was used instead. The temperature in the cell was very low.
According to the applicant, as a result of the conditions of his detention, he suffered a nervous breakdown and had to be given emergency medical assistance on 3 October 2003. He was admitted to a hospital on the same day.
On 2 October 2003 the applicant’s lawyer appealed against the decision of 25 September 2003, annexing several documents regarding the unfairness of the trial in the first-instance court, and referred to the unreasoned refusal to hear defence witnesses. He also questioned the need for the court to choose the most severe punishment – detention, which under Article 31 of the Code of Administrative Offences (CAO) was an exceptional measure. The court had allegedly failed to verify the presence of any attenuating circumstances such as O.M.’s provocation of the applicant.
Additional documents and arguments were in preparation for submission during the court hearing, including a statement signed by 17 members of the housing association denying the applicant’s alleged tendency to swear and a statement by a witness present at the relevant meeting on 29 August 2003.
On 6 October 2003 the court was requested to suspend the enforcement of the punishment pending the applicant’s recovery and pending a final judgment on his appeal. On 10 October 2003 this request was accepted.
On 4 November 2003 the applicant and his lawyer found out that on 23 October 2003 the Chişinău Court of Appeal had rejected their appeal. The court limited itself to stating that:
“The decision of the first-instance court is lawful and well-founded. On the basis of Article 282/5 (1) of the Code of Administrative Offences, [the court] .. rejects the appeal...”
According to the decision, the court heard the other party’s lawyer. There was no mention of the presence of either the applicant or his lawyer, nor any mention of the court’s having informed them about the date and place of the hearing. According to the applicant, neither he nor his lawyer was informed about the hearing.
This decision was final. After the applicant’s recovery, the suspension of the enforcement of the judgment of 25 September 2003 was lifted on an unknown date and the applicant was placed in detention to serve the remaining two days of his punishment.
B. Relevant domestic law
The relevant domestic law and practice have been set out in Ziliberberg v. Moldova (no. 61821/00, §§ 22-25, 1 February 2005).
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the unfairness of his trial.
2. He also complained under Article 2 of Protocol No. 7 to the Convention about the failure of the State to guarantee him the right to an appeal.
THE LAW
On 10 January 2007 the Court received the following signed declaration from the parties:
“Translation
Original: Romanian
FRIENDLY SETTLEMENT AGREEMENT
in the case of
CEBAN AGAINST THE REPUBLIC OF MOLDOVA
Application no. 21367/04
Chişinău, 10 January 2007
The present friendly settlement agreement is entered into under section 13 of the Government Agent Act (Law no. 353-XV) of 28 October 2004, between the Government of the Republic of Moldova (“the Government”), represented by their Agent, Mr Vladimir Grosu, of the one part, and Mr Anatol Ceban (“the applicant”), represented by Mr Victor Constantinov, of the other part, hereinafter referred to as “the Parties”.
The Parties hereto,
Having regard to the fact that the European Court of Human Rights has on its docket the case of Ceban v. Moldova (application no. 21367/04), in which the applicant alleges that there has been a violation by the State authorities of Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms (right to a fair hearing; complaint that his defence rights were breached in that he was not notified of a relevant hearing and that his request for the examination of defence witnesses was rejected without any reasoning) and of Article 2 of Additional Protocol No.7 to the Convention (right of appeal in criminal matters; complaint that under domestic law cases in administrative proceedings are examined only by a first-instance tribunal of fact, whose decision cannot be challenged by means of an ordinary appeal, only an appeal in cassation);
Having regard to the European Court’s case-law in similar cases, in particular in the case of Ziliberberg v Moldova, judgment of 1 February 2005,
Hereby agree as follows:
1. The Government undertake to award the applicant, with a view to reaching a friendly settlement of the case at issue, the sum of EUR 950 (nine hundred and fifty euros), to be paid in Moldovan lei at the official exchange rate of the National Bank of Moldova as at the date of payment, in compensation for any damage that may have been sustained and for the costs and expenses of representation, within three months from the date of the decision to strike out application no. 21367/04 (Ceban v. Moldova) from the docket of the European Court.
2. The payment of the said sum shall constitute the final settlement of this case.
3. The applicant declares that he has secured satisfaction in respect of his claims and undertakes to withdraw application no. 21367/04 (Ceban v. Moldova) to the European Court, of which notice was given to the Government on 18 October 2006.
4. The applicant declares that in the future he will refrain from bringing pecuniary, non-pecuniary or any other claims against the Government in connection with the present case.
5. The Parties shall inform the European Court of the existence of this agreement and shall request that the application be struck out of its list.
This agreement is drawn up in three counterparts, each being equally authentic and legally binding.
Signed:
Vladimir GROSUVictor CONSTANTINOV
Agent of the GovernmentRepresentative”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
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
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy