SECOND SECTION
DECISION
Application no. 3077/10
Vadim CIORNEA
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 15 May 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 14 January 2010,
Having regard to the declaration submitted by the respondent Government on 18 January 2018 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:
FACTS AND PROCEDURE
The applicant, Mr Vadim Ciornea, is a Moldovan national, who was born in 1965 and lives in Chișinău. He was represented before the Court by Mr A. Bivol, a lawyer practising in Chișinău.
The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.
The application concerns the applicant’s detention for twenty-three and seventeen days in pre-trial detention and under house arrest, respectively, based on reasons which were general and stereotyped. The applicant was also not been given access to the materials on the basis of which his detention had been ordered and the courts had refused to hear a witness, whose testimony had been central for ordering detention. After his acquittal, the applicant initiated civil proceedings against the State claiming compensation for the breach of his Article 5 rights. The Supreme Court of Justice found that his detention had been in breach of Article 5 of the Convention and awarded him some 535 euros (EUR) for non-pecuniary damage. The applicant complained before the Court that the amount was not sufficient for him to lose his victim status under Article 5 §§ 3 and 4 of the Convention.
The application had been communicated to the Government.
THE LAW
The applicant complained about the lack of relevant and sufficient reasons for his detention in custody and for his home arrest. He also complained about the lack of access to the materials of the case-file and the courts’ refusal to hear a witness whose testimony could prove his detention unnecessary. He relied on Article 5 §§ 3 and 4 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 18 January 2018 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 of the Republic of Moldova acknowledge that there has been a violation of the applicant’s rights under Article 5 §§ 3 and 4 of the Convention since the compensation for non-pecuniary damage awarded by the national courts has not enabled the applicant to lose his victim status. Therefore, the Government offer to pay ex gratia to Vadim Ciornea [...], EUR 3,000 (three thousand euros) to cover any and all pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicant.
[...] the above amount, [...] 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 Convention. 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 and of any other claims that may appear from the circumstances of the present case.
In conclusion, the Government invite the Court to strike the application out of its list, according to the provisions of Article 37§ 1 (c) of the Convention.”
By a letter of 16 February 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the amount proposed by the Government was too low. He pointed to the case of Cristina Boicenco v. Moldova (no. 25688/09, 27 September 2011) where the court awarded the applicant EUR 6,000 for non-pecuniary damage.
The Court reiterates 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) of the Convention 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 reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention 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 has examined the declaration in the light of the principles emerging from its case-law, see in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
Having regard to the nature of the admissions contained in the Government’s unilateral declaration of 18 January 2018 and to the amount of compensation proposed by the Government which is consistent with the amounts awarded in similar cases (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, ECHR 2016 (extracts); see also Ţurcan and Ţurcan v. Moldova, no. 39835/05, 23 October 2007; Rimschi v. the Republic of Moldova, no. 1649/12, 13 January 2015), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005)). In so far as the applicant’s referral to the case of Cristina Boicenco (cited above) is concerned, the Court notes that unlike the present case, it raised a problem under Article 5 § 1 of the Convention.
In the light of all the above considerations, 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 the application (Article 37 § 1 in fine).
Accordingly it should be struck out of the list.
For these reasons, the Court, unanimously
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 7 June 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy