FOURTH SECTION
DECISION
Applications nos. 33607/04, 22907/04 and 21376/04
by Nina CIOBANU and others
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 22 April 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Stanislav Pavlovschi,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 23 August 2004, 1 June 2004, 14 May 2004 and 10 May 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the applicants’ replies to those declarations,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Nina Ciobanu, Ms Nina Tarutin and Ms Galina Cosencov are Moldovan nationals who were born in 1949, 1946 and 1943, respectively. Ms Nina Ciobanu and Ms Nina Tarutin were represented before the Court by Mr Andrei Balan and Mr Anatolii Tarutin, respectively. The Moldovan Government (“the Government”) were represented by Ms Lilia Grimalschi, Head of Department of the Government Agent.
A. The circumstances of the case
In 1994 each applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), whereby they paid insurance premiums in exchange for monthly annuity pensions varying between 100 Moldovan lei (MDL) and MDL 200 (between the equivalent of 24 United States dollars (USD) and USD 48 at the time).
On different dates in 1999 ASITO stopped paying the pensions, in some cases, or refused to start paying them, in other cases, invoking a change in the interest rate of the National Bank of Moldova and calling for the termination of the contracts.
On different dates in 2001, the applicants brought civil actions against ASITO, seeking the payment of their pension arrears and requiring the company to abide by the 1994 contracts.
Between 2001 and 2002 all the applicants obtained final and enforceable judgments by which the domestic courts ordered ASITO to pay them their pension arrears and to resume the execution of the contracts. The courts found the contracts to be valid and dismissed ASITO’s requests to terminate them or to exempt it from abiding by them on the ground of force majeure, which in ASITO’s view, was constituted by the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova.
On 14 December 2001 the Prosecutor General, in the context of different but related proceedings, lodged an “appeal in the interest of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding the contracts and of setting a uniform practice for all courts.
On 11 March 2002, the Plenary Supreme Court of Justice issued a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. In particular, it found that the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova could be relied upon by ASITO in order to unilaterally terminate the annuity contracts. It also found that its judgment was binding on all the courts, although it could not, however, affect already existing judgments and it could not be used against the parties to proceedings which had already been decided.
Subsequently, ASITO brought civil actions against the applicants asking for the termination of the contracts concluded in 1994. It relied on the same reasons as contained in the judgment of the Plenary Supreme Court of 11 March 2002.
Between September and December 2003 ASITO obtained final favourable judgments against each of the applicants.
On 25 October 2004, the Plenary Supreme Court of Justice upheld a revision request lodged against its judgment of 11 March 2002 by a group of ASITO pensioners. The Supreme Court quashed its previous judgment while finding, inter alia, that ASITO could not rely on the economic crisis, inflation and the change in the interest rate of the National Bank of Moldova for avoiding its annuity contracts.
B. Relevant domestic law
The relevant domestic law is set out in Macovei and Others v. Moldova, nos. 19253/03, 17667/03, 31960/03, 19263/03, 17695/03 and 31761/03, §§ 16-18, 25 April 2006.
COMPLAINTS
All the applicants complained, in substance, of a breach of the principle of legal certainty provided for in Article 6 § 1 of the Convention. They argued that the validity of their pension contracts had been confirmed by final judgments in their favour; however, it had been called into question following the judgment of the Plenary Supreme Court of 11 March 2002 and the subsequent judgments of September and December 2003 to find in favour of ASITO.
Ms Tarutin also complained about the unfairness of the proceedings because of an alleged secret arrangement between ASITO and the Government. She claimed that ASITO had an agreement with the Government according to which it would withdraw its application (no. 40663/98, declared admissible at the time) from the Court in exchange for the Government’s assistance with their problem with the pensioners.
The applicants complained that their right, as guaranteed by Article 1 of Protocol No. 1 to the Convention, to the peaceful enjoyment of possessions (namely their pension rights) had been breached by the State, in particular by the judgments of the courts which cancelled their annuity contracts.
Ms Tarutin further submitted that there had been a violation of Article 13 of the Convention, since she had not had an effective remedy in respect of the breach of her rights.
THE LAW
Article 37 of the Convention, as far as relevant, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(b) the matter has been resolved...”
Rule 43 § 1 of the Rules of Court, as far as relevant, reads as follows:
“The Court may at any stage of the proceedings decide to strike an application out of its list of cases in accordance with Article 37 of the Convention.”
On 20 November 2006 the Government submitted unilateral declarations (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003‑VI) and informed the Court that they were ready to accept that there had been an infringement of the applicants’ rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. In respect of pecuniary damage, the Government proposed to award Ms Ciobanu, Ms Tarutin and Ms Cosencov the equivalent in MDL of 500 euros (EUR), EUR 700 and EUR 850, respectively. In respect of non-pecuniary damage, the Government proposed to award the applicants the equivalent in Moldovan lei of EUR 2,000 each. They also proposed to award Ms Ciobanu and Ms Cosencov compensation for their reasonable and proven costs and expenses incurred before the Court, while in respect of Ms Tarutin, they proposed to award her EUR 300 for costs and expenses. The Government undertook to pay the above-mentioned amounts for pecuniary and non-pecuniary damage within three months of the date of the Court’s notification of its strike-out decision. The sums covering costs and expenses would be paid on presentation of the relevant proof. The Government invited the Court to strike out the applications in accordance with Article 37 of the Convention.
On 15, 19 and 23 February 2007 the applicants informed the Court that they agreed with the Government’s proposals.
Having regard to the fact that the applicants do not oppose the Government’s strike-out request and agreed the terms of the Government’s declarations, the Court considers that the matter raised by the cases has been resolved (Article 37 § 1 (b) of the Convention). It is satisfied that respect for human rights as defined in the Convention and its Protocols does not require a continued examination of the applications (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to these cases and they should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the applications out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy