FOURTH SECTION
DECISION
Application no. 18569/03
by Zinovia GAJIU
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 29 January 2008 as a Chamber composed of:
Nicolas Bratza, President,
Josep Casadevall,
Stanislav Pavlovschi,
Lech Garlicki,
Ljiljana Mijović,
Ján Šikuta,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 April 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Zinovia Gajiu, is a Moldovan national who was born in 1951 and lives in Drochia. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 May 1999 a truck owned by a State-owned sanitation company (“the company”) ran over the applicant’s daughter. She died of her injuries.
The applicant initiated court proceedings against the company, seeking compensation for pecuniary and non-pecuniary damage.
On 24 November 2000 the Buiucani District Court found in favour of the applicant and ordered the company to pay her 11,705 Moldovan lei (MDL) (the equivalent of 1,006 euros (EUR) at the time) in compensation for pecuniary damage and MDL 4,053 (EUR 348) for legal costs. It rejected the claim for compensation for non-pecuniary damage. The parties appealed.
On 23 May 2001 the Chişinău Regional Court partially upheld the applicant’s appeal and increased the amount of pecuniary damage and of costs and expenses to MDL 52,992 (EUR 3,843). The parties appealed.
By a final judgment of 25 October 2001 the Court of Appeal upheld the applicant’s appeal and awarded her MDL 150,000 (EUR 12,866) in compensation for non-pecuniary damage, in addition to the previous awards.
On an unspecified date the Prosecutor General lodged a request for the annulment of the judgments in favour of the applicant.
On 20 March 2002 the Supreme Court of Justice partially upheld the Prosecutor General’s request for annulment and quashed the above-mentioned judgments. It adopted a new judgment whereby it awarded the applicant MDL 100,000 (EUR 6,293) in compensation for non-pecuniary damage, while maintaining the award for pecuniary damage.
On 11 September and 2 October 2002 the applicant was paid MDL 154,582 (EUR 11,635), as awarded by the judgment of 20 March 2002.
The Prosecutor General lodged another request for annulment and asked for a further reduction in the amount of compensation for non-pecuniary damage.
On 28 October 2002 the Plenary Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the above-mentioned judgments. It adopted a new judgment whereby the amount of compensation for pecuniary damage was reduced to MDL 42,192 (EUR 3,146) and for non-pecuniary damage to MDL 50,000 (EUR 3,730).
The company subsequently initiated proceedings against the applicant for the recovery of MDL 62,389 (EUR 3,993), representing the difference between what the applicant had received on 11 September and 2 October 2002 and the award made by the Supreme Court on 28 October 2002.
On 4 November 2003 the Buiucani District Court ordered the applicant to repay MDL 62,389 and issued a warrant of execution. It also ordered the seizure of the applicant’s house and goods. The applicant appealed.
By a final judgment of 9 September 2004 the Chişinău Court of Appeal dismissed the company’s action and discontinued the proceedings.
The applicant has not repaid any money to the company.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention about the quashing by the Supreme Court of Justice on 20 March and 28 October 2002 of the final judgments in her favour as a result of the Prosecutor General’s requests for annulment.
THE LAW
A. Quashing of 28 October 2002
On 14 June 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“[The Government]:
1. Recognise that there had been an interference with the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of the lodging of the Prosecutor General’s requests for annulment and as a result of the fact that these were upheld by the Supreme Court of Justice.
2. [...] offer to pay 3,000 (three thousand) euros to Mrs Zinovia Gajiu in compensation for any pecuniary and non-pecuniary damage as well as costs and expenses.
This sum will be converted into Moldovan lei at the rate applicable on the date of payment and 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 European Convention on Human Rights. The payment will constitute the final resolution of the case.”
The applicant requested the Court to reject the Government’s proposal on the basis that she wanted the examination of her case to be continued and to have a judgment delivered.
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 on 8 May 2007 and was subsequently amended 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 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 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 (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 Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention as regards the quashing of a final judgment in favour of an applicant and the judgment beneficiary’s right to the peaceful enjoyment of possessions (see, among many others, Roşca v. Moldova; no. 6267/02, 22 March 2005; Nistas GmbH v. Moldova, no. 30303/03, 12 December 2006; and Josan v. Moldova, no. 37431/02, 21 March 2006). 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 (which can be considered reasonable in comparison with the Court’s awards in similar cases), the Court 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 this part of the application (Article 37 § 1 in fine).
B. Quashing of 20 March 2002
The applicant also complained about the quashing by the Supreme Court of Justice on 20 March 2002 of the final judgment of the Court of Appeal of 25 October 2001.
The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints which have been submitted within six months from the date of the “final” domestic decision. Insofar as the applicant lodged her complaint about the quashing of 20 March 2002 only on 25 April 2003, it follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Article 29 § 3 of the Convention
In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
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 so far as it concerns the quashing by the Supreme Court of Justice of the judgment of 20 March 2002, in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy