FOURTH SECTION
DECISION
Application no. 19042/06
by Andrei CHISTOL
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 29 April 2006,
Having regard to the declaration submitted by the respondent Government on 18 May 2009 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 Andrei Chistol, is a Moldovan national who was born in 1958 and lives in Chisinau. He was represented before the Court by Mr G. Ulianovschi, 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 involved in a car accident on 22 June 2005. According to the applicant, a car driven by J. in disregard of a red light was hit by the applicant’s car, driving in compliance with a green light. According to J., she had been driving through a green light and the applicant through a red light. The applicant allegedly informed the police that three witnesses, passengers in his car and one witness working in a nearby garage could confirm his version of events, but none of those witnesses was ever heard by any of the authorities or courts.
A criminal investigation was initiated into the accident, but on 3 August 2005 the prosecutor’s office decided to discontinue the investigation and to initiate administrative proceedings against the applicant.
On 22 September 2005 the Centru District Court found the applicant guilty of an administrative offence and sentenced him to the payment of a fine of 200 Moldovan lei (MDL) (13 euros (EUR) at the time).
According to the applicant, he was not summoned to that hearing and was not informed of the decisions taken earlier by the police in his respect. On 30 September 2005 his brother found out about the decision of 22 September 2005 and on 3 October 2005 the applicant lodged an appeal in cassation. In his appeal he mentioned, inter alia, that witnesses on his behalf, whom he had identified, had not been heard, and that he had not been summoned to the hearing. He added that he had not had the possibility to study the materials in the file. In any event the court could not apply a sanction to him after the expiry of three months from the date on which the alleged offence had taken place, whereas the sanction was imposed on him some four months later.
According to the applicant, in November or December 2005 he received a summons to appear in civil proceedings initiated against him by J., who claimed compensation for damage to her car. She referred to an administrative court decision of 24 October 2005 and a fine of MDL 300 imposed on the applicant.
Since both the date and the sum differed from what he had known of the proceedings, the applicant inquired about the fate of his appeal in cassation. He then found out that his appeal had been examined on 1 November 2005 in his absence. In the case file he found a receipt confirming that he had been summoned for 22 September 2005 and a signature which he claims was not his. No summons for the 24 October 2005 was contained in the file. There was no decision of 22 September 2005, contrary to the information given to him previously. Instead he found a decision of 24 October 2005 with an identical text, except for the amount of the fine, increased from MDL 200 to MDL 300. The new decision also mentioned that the applicant was not present at the hearing.
According to the applicant, there was nothing in the file to confirm that he or any of the four witnesses identified by him had ever been summoned to appear before the court.
The case file also contained his appeal of 3 October 2005, as well as a letter from the judge who had examined the case at first instance, with a note that a copy had been sent to the applicant so as to summon him to appear on 1 November 2005 at 10 a.m. According to the applicant, he never received that summons.
The last page in the file was the decision of the Chişinău Court of Appeal of 1 November 2005, which upheld the decision of 24 October 2005. Like the first-instance court decision, that of the Court of Appeal was brief, simply stating that the applicant had committed the administrative offence and that “other materials of the case” confirmed his guilt, without giving any details.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the case had been examined at two levels of jurisdiction in his absence and without summoning him, that the courts had not given sufficient reasons for their decisions, the first-instance court even omitting to identify the legal provision which he had allegedly breached, and had been biased against him.
2. He also complained under Article 6 § 3 of the Convention that he had not been informed of the charges against him when the prosecutor initiated administrative proceedings against him, that he had not been informed of the date of the court hearings and could thus not have prepared his defence, and that the witnesses on his behalf had not been heard by the courts.
THE LAW
The applicant complained he had not been summoned to any of the hearings before the domestic courts. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
He also complained that he had not been informed of the charges against him since he had not been summoned to court. He relied on Article 6 §1 of the Convention which, in so far as relevant, provides as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;”
The Court considers that the complaint under Article 6 § 3 does not raise an issue separate from that dealt with under Article 6 § 1 of the Convention.
By letter dated 18 May 2009 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 (unofficial translation from original letter in French):
“1. The Government acknowledge a violation of the applicant’s right to a fair trial, guaranteed under Article 6 § 1 of the Convention, as a result of the failure to summon the applicant [in a procedure] confirming to the recent case-law of the Court and as a result of the insufficient reasons given by the courts for their judgments.
2. Taking into account the Court’s relevant established case-law (notably, Russu v. Moldova, no. 7413/05, 13 November 2008 and Ziliberberg v. Moldova, no.61821/00, 1 February 2005), the Government offer the applicant sufficient just satisfaction capable of affecting his victim status with a view to striking the application off the Court’s list, which comprises:
(a) compensation for non-pecuniary damage – the Goernment offer EUR 1000 [one thousand euros] in compensation for non-pecuniary damage resulting from the irregular summoning and the insufficient reasons given by the courts for their judgments;
(b) costs and expenses before the Court – taking into account the costs of representation born by the applicant, the Government offer EUR 700 [seven hundred euros].
The sums offered in compensation for non-pecuniary damage (EUR 1000) and for costs and expenses (EUR 700) 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.
The Government also note that the new Code of Administrative Proceedings ... provides in article 475(2)(A) the right to request a reopening of the proceedings if an international court establishes in its judgment a violation of human rights or fundamental freedoms which can be remedied by a new judgment. ...”
In a letter of 23 June 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. Moreover, the administrative decisions against him were subsequently relied on by the courts in a civil law suit initiated against him by the other party (J.). J. was awarded MDL 30,676 to be paid by the applicant. Finally, the applicant expressed his doubts as to the prospects of success in initiating the reopening of the administrative proceedings.
In a letter dated 25 October 2010 the Government informed the Court that on 7 September 2010 the Chişinău Court of Appeal had accepted the request of the Prosecutor General’s Office for the reopening of the proceedings in the administrative case against the applicant. The court found that the applicant’s right guaranteed under Article 6 § 1 of the Convention had been breached as a result of the failure to properly summon him and the examination of the case in his absence and without hearing the applicant, the other party and witnesses. The court ordered a full rehearing of the case. It also rejected the applicant’s claim for just satisfaction made on the basis of Article 41 of the Convention, finding it premature as his guilt or innocence in the administrative case had not yet been determined. The Government asked, accordingly, to strike the applicant’s case off the Court’s list of cases on the basis of their declaration of 18 May 2009.
In a letter dated 10 November 2010 the applicant commented on the Government’s submissions of 25 October 2010. He noted, in particular, that the Chişinău Court of Appeal refused to award him compensation, which in his opinion prevented the decision from constituting sufficient just satisfaction and affecting his victim status in the proceedings before the Court. Moreover, the initiation of proceedings for the reopening of the civil case which he lost to J. could not result in compensation being awarded for the violation of Article 6 of the Convention.
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 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 Article 6 § 1 of the Convention concerning access to a court (see, for example, Kreuz v. Poland, no. 28249/95, §§ 52-57, ECHR 2001‑VI, Malahov v. Moldova, no. 32268/02, §§ 25-36, 7 June 2007, Ciorap v. Moldova, no. 12066/02, §§ 90-96, 19 June 2007, Clionov v. Moldova, no. 13229/04, §§ 35-42, 9 October 2007, and Tudor-Comert v. Moldova, no. 27888/04, §§ 32-42, 4 November 2008).
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)). In particular, it notes that the administrative decisions against the applicant have been annulled and the case was sent for a full retrial. While the applicant complains about the failure of the Chişinău Court of Appeal to also award him compensation, the Court notes that such compensation has been offered by the Government directly. Finally, the Court cannot speculate as to the outcome of the administrative proceedings and the effect which this outcome may have on the civil proceedings. It notes, however, that the law allows the applicant to ask for the reopening of the proceedings in the civil case in the event of winning the administrative one.
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).
In view of the above, it is appropriate to strike this part of the case out of the list.
The Court has a discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). In the present case, taking into account the relatively straightforward nature of the issues involved, it decides to award the applicant EUR 500 in respect of costs and expenses in addition to the amount offered by the Government.
Moreover, the Court understands the Government’s declaration as implying that the sums offered by them will be converted into Moldovan lei at the rate applicable at the date of settlement and that from the expiry of the three months reserved for payment as noted in the Government’s declaration until settlement simple interest shall be payable on the sums offered in the same declaration at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Holds that the respondent State is to pay the applicant EUR 500 (five hundred euros), plus any tax that may be chargeable on the applicant, in respect of costs and expenses, in addition to the amounts offered in their unilateral declaration;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıLjiljana Mijović
Deputy RegistrarPresident
Full & Egal Universal Law Academy