FOURTH SECTION
DECISION
Application no. 35631/16
Constantin FOTACHE
against Romania
The European Court of Human Rights (Fourth Section), sitting on 10 March 2022 as a Committee composed of:
Armen Harutyunyan, President,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above application lodged on 30 August 2016,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Constantin Fotache, was born in 1960.
On 1 July 2021 the Court (Fourth Section) sitting as a Committee, delivered a decision in a group of cases, which included the current application (see Oprea and Fotache v. Romania (dec.) [Committee], nos. 28350/16 and 35631/16, 1 July 2021). The Court took note of the friendly settlement reached between the parties and decided to strike the present application out of its list of cases in accordance with Article 39 on the basis of the applicant’s agreement to the terms of a unilateral declaration submitted by the Government and offering to pay him the amount of 4,500 euros (EUR) in respect of pecuniary and non-pecuniary damage and costs and expenses.
The applicant’s alleged formal agreement to the terms of the unilateral declaration (reply form), signed and dated 21 December 2020, was received by the Court on 5 January 2021.
On 27 August 2021 the Government made a request to restore the application to the Court’s list of cases as, in the course of the proceedings to enforce the Court’s decision, the applicant’s sister informed them that he had died on 17 May 2019. The Government noted that the applicant had died well before the delivery of the decision in the case of Oprea and Fotache (cited above) and that no legal heir had informed the Court of his death or had manifested their intention to join the proceedings in the applicant’s place.
On 21 October 2021 the Court decided, under Rule 43 § 5 of the Rules of the Court, to disjoin the present application from the one to which it had been joined and to restore it to the Court’s list of cases.
The parties were notified of the Court’s decision. The applicant’s potential heirs were also asked to provide an explanation concerning the signature on the unilateral declaration. The applicant’s sister replied that the applicant’s son would like to pursue the proceedings in his stead. Furthermore, she submitted that she was the one who signed the unilateral declaration. She believed the matter was of no relevance and that she was not aware she had to inform the Court that the applicant had died.
THE LAW
The Court notes that the applicant died on 17 May 2019 and that no potential heir informed the Court about his death or justified in any way the failure to promptly inform the Court of it (see, by way of contrast, Nicolae Augustin Rădulescu v. Romania (revision), no. 17295/10, § 9, 19 May 2015). The Court also notes that on 21 December 2020, more than a year and a half after Mr Fotache’s death, his sister submitted the formal agreement to the terms of the unilateral declaration, making it appear that it had been personally signed by the applicant. She did not seize that occasion to inform the Court of his death.
The Court is prepared to accept that the death of the applicant, a decisive fact, “could not reasonably have been expected to be known to” the Government, who only gained knowledge of this fact in the course of the proceedings carried out to enforce the Court’s decision.
The Court further recalls that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed, in a timely manner, a wish to pursue the application, without providing a valid explanation for such failure (see Moloțiu and Others v. Romania (revision), no. 30787/03 and 20 others, § 10, 16 November 2021 and, by way of contrast, Büttner and Others v. Romania (revision), no. 31560/04 and 4 others, §§ 5-11, 12 October 2021).
In the light of the foregoing, in accordance with Article 37 § 1 (c) of the Convention, the Court considers that it is no longer justified to continue the examination of the application. Furthermore, it does not consider that “respect for human rights as defined in the Convention and the Protocols” requires the examination of the application.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 31 March 2022.
Viktoriya Maradudina Armen Harutyunyan
Acting Deputy Registrar President