THIRD SECTION
DECISION
Application no. 16/06
Ioan-Valean CODARCEA
against Romania
The European Court of Human Rights (Third Section), sitting on 24 January 2012 as a Committee composed of:
Alvina Gyulumyan, President,
Luis López Guerra,
Nona Tsotsoria, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 7 December 2005,
Having regard to the declaration submitted by the respondent Government on 14 February 2011 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 Ioan-Valean Codarcea, is a Romanian national who was born in 1932 and lives in Târgu-Mureş. The Romanian Government (“the Government”) were initially represented by their former Agent, Mr. Răzvan‑Horaţiu Radu, and subsequently by Ms Carmen Ciută, from the Ministry of Foreign Affairs.
The case concerned the divergent case-law of the High Court of Cassation and Justice regarding entitlement to the rights set out by Law no. 309/2002. By the final judgment no. 3825 of 17 June 2005, the High Court of Cassation and Justice dismissed the applicant’s claim for the pecuniary rights provided for by Law no. 309/2002.
The applicant mainly complained under Article 6 § 1 of the Convention, and Article 14 taken together with Article 1 of Protocol No. 1 that the High Court of Cassation and Justice had denied him the rights prescribed by Law no. 309/2002, while the same court had allowed similar claims lodged by plaintiffs who were in the same situation as him. The applicant also complained under Article 4 of the Convention that he was forced to work in labour brigades during 1953-1956.
THE LAW
1. By a letter dated 14 February 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“1. The Government declares – by a way of this unilateral declaration – its acknowledgement of the violation of Article 6 § 1 of the Convention in respect of the applicant’s right to a fair trial and of Article 14 taken together with Article 1 of Protocol 1 to the Convention, due to the judgment no. 3825 of 17 June 2005 rendered by the High Court of Cassation and Justice.
2. The Government is prepared to pay to the applicant as just satisfaction the sum of EUR 5,000 (five thousand euros), amount which it considers reasonable in the light of the Court’s case-law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable in Romanian lei at the rate applicable at the date of payment to personal accounts of the applicant within three months from the date of the notification of the decision pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said 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.
3. Therefore, the Government respectfully invites the Court rule that the examination of the present application is no longer justified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention.”
In a letter of 16 March 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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 Romania, its practice concerning complaints about divergent caselaw of domestic courts (see, for example Beian v. Romania (no. 1), no. 30658/05, §§ 40, 65, ECHR 2007‑V (extracts); Driha v. Romania, no. 29556/02, §§ 33, 38-39, 21 February 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 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 these complaint (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
2. Referring to Article 4 of the Convention, the applicant complained of him having been compelled to work in the forced labour brigade during the 1950’s.
The Court recalls that the Convention does not apply to events which occurred prior to its entry into force in respect of a Member State. Romania ratified the Convention on 20 June 1994, long after the facts complained of by the applicant. It follows that this part of the application must be rejected as incompatible ratione temporis, pursuant to Article 35 of the Convention.
For these reasons, the Court unanimously,
Takes note of the terms of the respondent Government’s unilateral declaration in respect of the applicant’s complaints under Article 6 § 1 of the Convention and Article 14 taken together with Article 1 of Protocol No. 1 to the Convention;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Marialena TsirliAlvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy