FOURTH SECTION
DECISION
Application no. 21136/03
by Natalia FILIMONOVA
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 9 April 2003,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases and the applicant’s reply thereto,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Natalia Filimonova, is a Moldovan national who was born in 1959 and lives in Orhei. The Moldovan Government (“the Government”) are represented by their Agent, Mr V. Pârlog.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first set of proceedings
On 11 October 1999 the applicant was dismissed from her job at the Orhei Town Hall.
On 21 June 2000 the Chişinău Regional Court found in favour of the applicant and ordered that the Orhei Town Hall re-instate her. On 14 September 2000 the Court of Appeal overruled that decision.
On 21 March 2001 the Supreme Court of Justice overruled the decision of the Court of Appeal dated 14 September 2000 and re-instated the decision of the Chişinău Regional Court of 21 June 2000.
The applicant was re-instated in her job in accordance with the decision of the Supreme Court of Justice of 21 March 2001. However, she was subsequently dismissed again.
2. The second set of proceedings
On 31 May 2002 the Chişinău Regional Court ordered the Orhei Town Hall to re-instate the applicant as of 21 December 2002 and to award her salary for the period of her involuntary absence from work (between 25 December 2001 and 31 May 2002), to the value of 3,550 Moldovan lei (MDL) (237 euros (EUR)) and costs and expenses in the sum of MDL 1,692 (EUR 113).
On 19 November 2002 the Court of Appeal upheld the decision of the Chişinău Regional Court of 31 May 2002.
3. The third set of proceedings
As the applicant was not re-instated in her job as ordered by the Chişinău Regional Court in its judgment of 31 May 2002, she initiated new proceedings, requesting payment of her salary for the relevant period of involuntary absence from work (namely, between 31 May 2002 and 14 March 2003) and the enforcement of the expenses part of the above‑mentioned judgment.
On 3 June 2003 the Orhei District Court ordered the Orhei Town Hall to award the applicant the sum of MDL 10,000 (EUR 667) for her involuntary absence from work in the period between 31 May 2002 and 14 March 2003. It further ordered the Orhei Town Hall to pay the applicant MDL 1,692 for expenses, as was decided by the Chişinău Regional Court on 31 May 2002.
On 10 July 2003 the Orhei District Court suspended the execution of the decision of 3 June 2003.
On 8 September 2003 the applicant was again dismissed from her job.
On 5 December 2003 the Orhei District Court partly allowed the applicant’s claim for her salary for the period of her involuntary absence from work between 31 May 2002 and 14 March 2003 and awarded her MDL 3,177 (EUR 208). It also ordered the enforcement of the costs and expenses part of the judgment of the Chişinău Regional Court of 31 May 2002 in the sum of MDL 1,692 and annulled its decision of 10 July 2003 to suspend its enforcement.
On 23 March 2005 the sum of MDL 1,692 was paid to the applicant.
4. The fourth set of proceedings
The applicant brought further proceedings before the Orhei District Court, seeking the annulment of the decision of the Orhei Town Hall to dismiss her, her re-instatement, MDL 10,498 (EUR 700) for the non-execution of the judgment between the period commencing 31 May 2002 and ending 14 March 2003, and MDL 1,692 in expenses.
On 12 April 2005 the Orhei District Court awarded the applicant the sum of MDL 3,177 for her involuntary absence from work between 31 May 2002 and 14 March 2003 as well as expenses in the sum of MDL 1,692.
On 2 June 2005 the Chişinău Court of Appeal quashed the judgment of 12 April 2005 and ordered a full re-hearing of the case. The Orhei District Court sent the case to the Supreme Court of Justice in order for it to examine the request for revision (in essence, an appeal against the judgment of 5 December 2003) lodged by the applicant. The case is still pending.
On 8 September 2005 the applicant received MDL 10,498.
5. The current state of the proceedings
The Government assert that all the sums awarded to the applicant by final judgment have been paid to her. They rely on receipts obtained from the Orhei Town Hall and the Ministry of Justice’s Department of Execution.
COMPLAINTS
The applicant complained that her rights under Article 6 § 1 of the Convention had been breached as a result of the non-enforcement of the expenses part of the judgment dated 31 May 2002 and the suspension of the judgment of 3 June 2003.
She further complained under Article 1 of Protocol No. 1 to the Convention that the non-enforcement in issue had violated her right to the peaceful enjoyment of her possessions.
She lastly complained that she had no effective remedy available to her within the meaning of Article 13 of the Convention.
THE LAW
A. As concerns the Government’s declaration in respect of the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention
On 14 September 2007 (subsequent to the submission of their observations on the admissibility and merits of the application which were received in December 2005), the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The Government pointed out that their attempts to reach a friendly settlement with the applicant had failed.
The declaration provided as follows:
“[The Government]:
Recognise that the non-enforcement within a reasonable time-frame of the final judgment in the applicant’s favour dated 31 May 2002 constituted a violation of her right to a fair hearing, within the meaning of Article 6 § 1 of the Convention, as well as a violation of her rights under Article 1 of Protocol No. 1 to the Convention. In particular, the Government recognise that the enforcement of the awards amounting to MDL 3,550 for the applicant’s forced absence from work and MDL 1,690 for costs and expenses during a period of 9 months and 34 months respectively, cannot compensate for the unreasonable delay.
....
The sums proposed as just satisfaction are: pecuniary damage (EUR 100); non‑pecuniary (EUR 500), as well as costs and expenses (EUR 20), which will be payable within three months of the date of a decision taken by the European Court of Human Rights to strike the application out.”
The applicant, in a handwritten letter received by the Court on 26 May 2008, asserted that the judgment in her favour had not been fully enforced. She stressed her precarious financial situation and the fact that she has been unable to find alternative employment.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It notes that, under Article 38 § 2 of the Convention, friendly settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government outside the framework of the friendly-settlement negotiations.
The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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 to strike a case out of its list in particular if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also notes that under certain circumstances, it may strike out an application or part thereof 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 will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).
As to the circumstances of the instant case, the Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention as regards the obligation to enforce final judgments (see, among many others, Prodan v. Moldova, no. 49806/99, ECHR 2004-III (extracts); Luntre and Others v. Moldova, nos. 2916/02, 21960/02, 21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02, 21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004 and Ungureanu v. Moldova, no. 27568/02, 6 September 2007). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which depended on the particular features of the case.
Having regard to the nature of the admissions contained in the Government’s unilateral declaration, as well as the amount of compensation proposed, the Court considers the Government’s proposal to be reasonable in comparison with the Court’s awards in similar cases (see Ungureanu v. Moldova, cited above § 39). Though the sum for costs and expenses put forward appears to be relatively low, the Court notes that the applicant was not represented in the proceedings before it and that she made no Article 41 submissions in this respect. The Court therefore considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005).
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 in so far as it relates to the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention (Article 37 § 1 in fine).
As for the applicant’s complaint that she had no effective domestic remedy available to her against the non-enforcement in issue, the Court considers that that particular grievance has been adequately addressed by the Government’s clear acknowledgment of breaches of her substantive rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Government’s concessions, compensation and undertakings can be considered sufficient redress for the applicant’s Article 13 complaint (see Martin Wilson v. the United Kingdom (dec.) (30505/03), 10 March 2009).
B. The complaints under Articles 3, 5, 8, 14 and 17
In so far as the applicant’s complaints under Articles 3, 5, 8, 14 and 17 of the Convention are concerned, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases the part of the application concerning the complaints under Article 6 § 1, Article 13 and Article 1 of Protocol No. 1 to the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy