FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53180/99
by Valentin GORIZDRA
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 2 July 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi, judges,
andMr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 7 April 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Valentin Gorizdra, is a Moldovan national, who was born in 1948 and lives in Chişinău.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings for annulment of certain legislative provisions and administrative decisions
The applicant is a former councillor of the Chişinău City Council. In January 1997 he lodged with the Chişinău Regional Court an application contesting the Municipal Council’s decision of 19 July 1994 concerning the levying of local taxes and duties and the decision of 17 October 1996 regarding the placement of outside advertisements in the Municipality of Chişinău, the presidential decree of 10 May 1995 appointing the mayor and certain provisions of i) the law of 27 December 1994 concerning the date of local elections and the extension of the mandate of the councillors of local councils, ii) the law of 7 December 1994 concerning the local elections, iii) the law of 7 December 1994 concerning the local public administration, iv) the law of 19 April 1995 concerning the status of the Municipality of Chişinău and v) the law of 19 April 1995 concerning the status of a councillor in a local council. He alleged that the contested legal provisions contravened the Constitution and ratified international instruments and that the unlawfully conducted municipal elections of 1995 precluded him from freely exercising his right to participate in the administration of local public affairs. On 23 January 1997 the Chişinău Regional Court dismissed as unfounded the application on the ground that his right to participate in the administration of local public affairs as a former councillor had not been interfered with as a result of the municipal elections and of the impugned acts. The applicant appealed against this decision, submitting that the Regional Court had erroneously applied the material law and incorrectly dismissed his application. On 14 October 1997 the Court of Appeal dismissed the appeal as unfounded referring to the reasoning of the Regional Court. The applicant appealed against this decision, arguing that the inferior courts had disregarded the relevant provisions of the Constitution and ratified international instruments on human rights. On 17 December 1997 the Supreme Court allowed the appeal, set aside the Court of Appeal’s decision of 14 October 1997 and sent the case back for re-examination to the same court. On 8 April 1998 the Court of Appeal dismissed as unfounded the applicant’s appeal against the decision of the Regional Court of 23 January 1997 and upheld the latter decision.
The applicant lodged an appeal against this decision, arguing that the Court of Appeal had erroneously applied procedural law and disregarded the relevant provisions of the Constitution and ratified international instruments on human rights. On 15 July 1998 the Supreme Court dismissed the appeal after having found that the Court of Appeal had conducted the proceedings in accordance with applicable procedural rules having due regard to the relevant provisions of the Constitution and ratified international instruments on human rights. On 16 September 1998 the Supreme Court dismissed as unfounded the applicant’s petition for annulment against of decision.
2. Proceedings contesting the letters from the Constitutional Court
In 1997 the applicant contested before the Court of Appeal an official letter signed and addressed to him by a judge of the Constitutional Court, explaining that the court lacked jurisdiction insofar as it concerned individual and collective petitions lodged by citizens directly with the Constitutional Court. He argued that the said letter and the refusal of a judge of the Constitutional Court to examine his application had infringed his constitutional right to have direct access to the Constitutional Court. On 19 August 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction, observing that jurisdiction in the matter lay with the competent district court. The applicant appealed against this decision, submitting that the Court of Appeal had erroneously applied procedural law and incorrectly dismissed the application. On 8 October 1997 the Supreme Court dismissed the applicant’s initial application relying on the fact that the contested letter could not be classified as an administrative act and that therefore the courts lacked jurisdiction as regards the infringement of the applicant’s rights he had complained of.
In 1998 the applicant contested before the Court of Appeal the actions and omissions of judges of Constitutional Court who had rejected his numerous complaints and letters in which he had challenged the constitutionality of certain legislative provisions and administrative decisions. He complained that the contested acts and omissions contravened the Constitution and ratified international instruments on human rights. On 9 April 1998 the Court of Appeal dismissed the application on the ground that the court lacked jurisdiction as regards the infringements of the applicant’s rights he had complained of. The applicant lodged an appeal against this decision. On 22 July 1998 the Supreme Court, relying on the same grounds as those stated in the Court of Appeal’s decision, dismissed the applicant’s appeal. On 3 September 1998 the Supreme Court dismissed as unfounded the applicant’s petition for annulment of this decision.
3. Proceedings for annulment of certain legislative provisions and two presidential decrees
In 1997 the applicant contested before the Court of Appeal the presidential decree of 9 August 1994 appointing the mayor of Chişinău and the presidential decree of 10 May 1995 appointing the Chişinău Municipal Council, alleging that the contested decrees contravened the Constitution and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to the Municipal Council and to participate in the administration of local public affairs. On 3 September 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts, observing that jurisdiction in the matter lay with the Constitutional Court. The applicant appealed against this decision, arguing that the Court of Appeal had failed to examine all the complaints contained in his application. On 22 October 1997 the Supreme Court, referring to the Court of Appeal’s reasoning, dismissed the appeal as unfounded.
Also in 1997 the applicant contested before the Court of Appeal the provisions of i) Article 140 § 1 of the Constitution, ii) the law of 13 December 1994 concerning the Constitutional Court, iii) the Code of constitutional jurisdiction of 28 September 1995 and iv) six administrative acts of the Parliament and its divisions. He alleged that the contested legal norms contravened the Constitution and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to the Municipal Council and to participate in the administration of local public affairs. On 5 September 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts, observing that jurisdiction in the matter lay with the Constitutional Court. The applicant appealed against this decision, arguing that the Court of Appeal had failed to examine all the complaints contained in his application. On 22 October 1997 the Supreme Court quashed the decision of the Court of Appeal of 5 September 1997 and sent the case back for re-examination to the same court. On 6 January 1998 the Court of Appeal dismissed the initial application on the ground of its lack of jurisdiction, observing that the jurisdiction in the matter concerning the constitutionality of the challenged acts lay with the Constitutional Court, while the competence concerning the electoral disputes lay with competent district court. On 3 June 1998 the Supreme Court, relying on the same grounds as those stated in the Court of Appeal’s decision of 6 January 1998, dismissed the applicant’s appeal against the above decision.
4. Proceedings for annulment of eleven decisions of the Central Electoral Commission
In 1998 the applicant contested before the Supreme Court eleven decisions of the Central Electoral Commission concerning the preparation and carrying out of the electoral campaign for the parliamentary elections of 1998 and the manner in which the Central Electoral Commission had applied certain provisions of the Electoral Code. He argued that the contested acts and the manner in which they were applied contravened the relevant provisions of the Constitution and ratified international instruments on human rights and infringed his right to vote and to stand for the parliamentary elections. In particular, he complained that the threshold of 4% of the votes cast established for all candidates placed the independent candidates in a disadvantageous position as against other candidates (e.g. political parties, blocks etc.). On 19 March 1998 the Supreme Court dismissed the application on the ground that all the contested decisions had been adopted in accordance with the applicable provisions of the Constitution and Electoral Code. In the same decision, the court ruled that it had had due regard to the relevant provisions of the ratified international instruments on human rights and that the applicant had failed to adduce prima facie evidence to prove that the contested acts had interfered with his right to vote and to stand for the parliamentary elections of 1998 and dismissed as unfounded his complaint concerning the difference in treatment of the candidates. The applicant appealed against this decision, arguing that the Supreme Court had erroneously applied the Electoral Code and the rules of civil procedure, and had disregarded relevant provisions of the international instruments on human rights incorporated in the domestic legal order. On 21 March 1998 the enlarged panel of the Supreme Court, relying on the same grounds as those stated in its decision of 19 March 1998, dismissed the applicant’s appeal.
5. Proceedings for annulment of an administrative decision
In 1998 the applicant lodged with the Court of Appeal an application against the Government, Chancellery of State and eleven ministries requesting the annulment of a joint decision of 21 May 1998 of the Ministry of Economy and Ministry of Finance imposing the levying of compulsory fees as a condition for exercising certain entrepreneurial activities. In the same application, he argued that the decision contravened the Constitution and ratified international instruments on human rights and sought compensation for pecuniary and non-pecuniary damage caused to him as a result of the decision. On 7 April 1999 the Court of Appeal discontinued the proceedings on the ground of lack of jurisdiction in respect of the alleged unconstitutionality of the above decision, observing that jurisdiction lay with the Constitutional Court.
The applicant appealed against this decision, submitting that the court had erroneously applied procedural law and incorrectly discontinued the proceedings. On 16 July 1999 the Supreme Court quashed the judgment and sent the case back for re-examination to the Court of Appeal on the ground that the applicant had failed to exhaust extra-judicial proceedings by contesting the decision before the administrative authority which had adopted the decision. On 26 October 1999 the Court of Appeal dismissed the initial application as inadmissible on the ground that, in the meantime, the above administrative decision had been declared unconstitutional by the Constitutional Court and had been subsequently repealed by another administrative decision. The applicant lodged an appeal against this decision, arguing that his appeal had been dismissed as a result of the erroneous interpretation and application of the applicable provisions of civil procedure. On 23 February 2000 the Supreme Court dismissed the appeal, relying on the same grounds as those stated in the judgment of the Court of Appeal of 26 October 1999. On 5 April 2000 the Supreme Court dismissed as unfounded the applicant’s petition for annulment of this decision.
B. Relevant domestic law
1. Provisions of the Constitution relied on in all proceedings
Article 1 provides that the Republic of Moldova is governed by the rule of law, where the dignity of people, their rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values, which shall be guaranteed.
Under Article 2, national sovereignty resides with the people of the Republic of Moldova, who shall exercise it directly and through its representative bodies in the ways provided for by the Constitution.
With regard to the human rights and freedoms, Article 4 states that the constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties endorsed by the Republic of Moldova. Wherever disagreements appear between conventions and treaties signed by the Republic of Moldova and her own national laws, priority shall be given to international regulations.
Pursuant to Article 7, the Constitution is the supreme law of the country, where no laws or other legal acts and regulations in contradiction with the provisions of the Constitution may have any legal power.
As for the observance of international law and international treaties, in accordance with Article 8, the Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is a party, to observe with its relations with other States the unanimously recognised principles and norms of international law. The coming into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision of the latter.
Article 54 provides that the exercise of certain rights or freedoms may be restricted only under the law and only as required in cases such as: the defence of national security, public order, health or morals, or citizens’ rights and freedoms, the carrying out of investigations in criminal cases, preventing the consequences of a natural calamity or of a technological disaster.
Article III of the final and transitional provisions provides that all State institutions in existence as of the date marking the coming into force of this Constitution (27 August 1994) retain their functionality until new institutions are established.
2. Constitutional provisions concerning the local public administration and fiscal system
Pursuant to Article 39, Moldovan citizens shall have the right to participate in the administration of public affairs, either directly or through their representatives. Article 109 further provides that the public administration governing in the administrative/territorial units is based on the principles of local autonomy, decentralisation of public services, eligibility of local public administration authorities and consultation of the citizens on local problems of special interest. With regard to village and town authorities, Article 112 states that at village and town level, the public administration authorities through which local autonomy is exercised are represented by the elected local councils and mayors.
Article 53 sets out the rights of persons aggrieved by public authority and provides, inter alia, that any person, whose rights have been interfered with in any way by public authority through an administrative ruling or a lack of timely legal reply to an application, is entitled to obtain acknowledgement of those rights, cancellation of the ruling and compensation of damages.
As to the fiscal system, pursuant to Article 132, all taxes, duties, and other revenue of the national budget, including the national social security budget and the district, town and village budgets shall be established under the law by the representative agencies, as required.
3. Provisions of the Code of Civil Procedure
Under Article 11 of the Code, the courts, in examining cases, shall apply the Constitution, laws and the international treaties endorsed by the Republic of Moldova. The provisions concerning human rights and freedoms shall be applied in accordance with Article 4 of the Constitution. The same Article states that a court shall not apply a law or any other normative act which contravene the Constitution.
As for the procedural aspects, pursuant to Article 131, a judge may refuse to take for examination an action or application if the case is not liable to be examined by the courts or the court lacks jurisdiction in respect of that case.
Article 235 provides, inter alia, that the collegiate acts of the public administration and the individual acts of officials can be contested before the courts.
4. Provisions concerning the Constitutional Court
Article 20 of the Constitution states that every citizen has the right to obtain effective protection from competent courts against actions infringing his or her legitimate rights, freedoms and interests. Article 134 of the Constitution further provides that the Constitutional Court is the sole authority of constitutional judicature in Moldova and that it is independent of any other public authority and obeys only the Constitution.
However, Article 26 of the law of 13 December 1994 on the Constitutional Court and Article 38 of the Constitutional Jurisdiction Code of 16 June 1995 provide that the Constitutional Court shall exercise its constitutional jurisdiction only upon an appeal of the following subjects: a) President; b) Government; c) Minister of Justice; d) Supreme Court of Justice; e) Court of Audit; f) Prosecutor General; g) Member of the Parliament and h) Parliamentary faction.
Under Article 140 of the Constitution, laws and other regulations or parts thereof become null and void from the moment that the Constitutional Court passes the appropriate decisions to that effect.
5. Provisions of the Electoral Code
Article 86 of the Electoral Code regulates the determination of the threshold of representation and states that upon receiving records of the voting results in all districts from all district electoral councils, the Central Electoral Commission shall count the number of valid votes cast for each candidate in order to establish whether or not they have passed the 4% threshold of representation. Accordingly, candidates having obtained votes than 4% of the votes cast shall be excluded from assuming their Parliamentary mandates by a decision of the Central Electoral Commission.
COMPLAINTS
1. The applicant complains, under Article 6 § 1 of the Convention, that the court proceedings concerning his applications contesting the validity of the municipal elections of 1995 and parliamentary elections of 1998 were conducted unfairly as the courts failed to examine all the arguments he had raised. He also complains about the lack of access to the Constitutional Court in order to challenge the compatibility with the Constitution of the legislation contested before the domestic courts. He complains that he did not have a fair hearing in the proceedings for annulment of the administrative decision concerning the levying of compulsory fees.
2. He further complains, under Article 3 of Protocol No. 1 to the Convention taken alone or in conjunction with Article 14 of the Convention, that as an independent candidate for the parliamentary elections of 1998 he was excluded from having a seat in the Parliament due the required threshold of 4% of the votes cast which resulted in a difference in treatment amounting to discrimination as against other candidates (e.g. political parties, blocks etc.). He claims that the court decisions were unfair and interfered with his right to participate in the administration of local public affairs.
3. The applicant also relies on Article 18 of the Convention.
4. He finally complains, under Article 13 of the Convention, that he has no effective remedy in respect of his complaints.
THE LAW
1. The applicant raises various complaints under Article 6 § 1 of the Convention.
Article 6 § 1 of the Convention, insofar as relevant, reads:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
(a) The applicant firstly complains that the court proceedings concerning his applications contesting the validity of the municipal elections of 1995 and parliamentary elections of 1998 were conducted unfairly.
The Court observes that the proceedings relating to the applications submitted to the domestic courts concerned the question of the validity of the municipal elections of 1995 and the parliamentary elections of 1998. Accordingly, these proceedings related to the exercise by the applicant of election rights, namely the rights to vote and to stand for the municipal and parliamentary elections. Such rights, by their nature itself, are political rights.
They fall outside the concept of “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis, the Pierre-Bloch v. France judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, pp. 2236-37, § 58 and Priorello v. Italy, application no. 11068/84, Commission decision of 6 May 1985, Decisions and Reports (DR) 43, p. 195). As a consequence, this provision of the Convention does not apply to the proceedings complained of.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) The applicant complains about the lack of access to the Constitutional Court in order to challenge the compatibility with the Constitution of the legislation contested before the domestic courts.
The Court observes that under Moldovan law an individual does not have standing in the proceedings before the Constitutional Court. The Court recalls that Article 6 of the Convention does not guarantee a right of access to a court with competence to invalidate or override a law (see Ruiz-Mateos and others v. Spain, application no. 14324/88, Commission’s report of 14 September 1991, DR 69 p. 227).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(c) The applicant complains that he did not have a fair hearing in the proceedings for annulment of the administrative decision concerning the levying of compulsory fees.
According to Article 34 of the Convention, the Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
The Court notes that, by its judgment of 16 July 1999, the Supreme Court quashed the Court of Appeal’s judgment of 7 April 1999 and sent the case back for re-examination to the same court on the ground that the applicant had failed to exhaust the extra-judicial proceedings by contesting the decision before the administrative authority which adopted the decision. The Court notes that, even assuming that the decisions relating to the examination issue concerned the determination of the applicant’s civil rights, the applicant, in any event, failed to exhaust the available domestic remedies by omitting to contest the decision before the administrative authority which adopted the decision. The Court further notes that, following the applicant’s appeal against the above judgment, on 26 October 1999 the Court of Appeal dismissed the initial application on the ground that, in the meantime, the above administrative decision had been declared unconstitutional by the Constitutional Court and had subsequently been repealed by another administrative decision.
In these circumstances, the Court concludes that the factual basis of the applicant’s complaint has been resolved on the domestic level.
The Court is therefore of the opinion, as regards his complaint under Article 6 § 1 of the Convention, that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention.
2. The applicant complains, under Article 3 of Protocol No. 1 to the Convention taken alone or in conjunction with Article 14 of the Convention, that an independent candidate for the parliamentary elections of 1998 was excluded from having a seat in the Parliament due the required threshold of 4% of the votes cast which resulted in a difference in treatment amounting to discrimination as against other candidates (e.g. political parties, blocks etc.)
Article 3 of Protocol No. 1 provides as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 18 of the Convention provides:
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
(a) The Court recalls that Article 3 of Protocol No. 1 does not create any obligation to introduce a specific electoral system such as proportional representation or majority voting. Given that the legislation of the Contracting States on the matter varies from place to place and from time to time, they are allowed a wide margin of appreciation. Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: to reflect fairly faithfully the opinions of the people and to channel currents of thought so as to promote the emergence of sufficiently clear and coherent political will. What must be guaranteed is the principle of equality of treatment of all citizens. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 24, § 54 and Fournier v. France, application no. 11406/85, Commission decision of 10 March 1988, DR 55, p. 130).
As to the present case, the Court notes that in the elections of 1998, the seats in the Parliament were allocated under the system of proportional representation with the requirement to obtain on the national level at least 4% of the votes cast. The Court further notes that the applicant did not stand as a candidate for the elections complained of.
The Court considers that the 4% threshold required for the parliamentary elections for the members of the Parliament to be elected under the system of proportional representation is intended to promote the emergence of sufficiently representative currents of thought and that this is a legitimate aim under the terms of Article 3 of Protocol No. 1 (see, mutatis mutandis, Magnago and Sudtiroler Völkspartei v. Italy, application no. 25035/94, Commission decision of 15 April 1996, DR 85-B, p. 112).
Even a system which fixes a relatively high threshold, e.g. as regards the number of signatures required in order to stand for election or, as in the present case, a minimum percentage of votes on the national level, may be regarded as not exceeding the margin of appreciation permitted to States in the matter (see, mutatis mutandis, Magnago and Sudtiroler Völkspartei v. Italy, application no. 25035/94, loc. cit. and Asensio Serqueda v. Spain, application no. 23151/94, Commission decision of 9 May 1994, DR 77-B, p. 122). The Court recalls that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured – whether it be based on proportional representation , the “first-past-the-post” system or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation (see Matthews v. the United Kingdom [GC], no. 24833/94, § 64, ECHR 1999-I).
Moreover, similar provisions concerning the minimum threshold for the allocation of seats exist in other European legal systems (see Tete v. France, application no. 11123/84, Commission decision of 9 December 1987, DR 54, pp. 52, 68 and 69).
The Court concludes that this complaint does not disclose a violation of Article 3 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) As regards the applicant’s complaint under Article 3 of Protocol No. 1 to the Convention about the proceedings contesting the validity of the municipal elections of 1995, the Court reiterates that Article 3 of Protocol No. 1 applies only to the election of the “legislature”, or at least of one of its Chambers if it has two or more (Collected Edition of the “Travaux préparatoires”, volume VIII, pp. 47, 51 and 53).
The word “legislature” does not necessarily mean only the national parliament, however, it has to be interpreted in the light of the constitutional structure of the State in question (see the Mathieu-Mohin and Clerfayt v. Belgium judgment, loc. cit., § 53 and Matthews v. the United Kingdom [GC] judgment, loc. cit, § 40).
In the instant case, the applicant complained about an election dispute relating to elections to the Chişinău Municipal Council. The municipal councils clearly do not exercise legislative power and do not therefore form part of the “legislature” within the meaning of Article 3 of Protocol No. 1 (see Clerfayt, Legros et al v. Belgium, application no. 10650/83, Commission decision of 17 May 1985, DR 42, p. 212; Booth-Clibborn v. United Kingdom, application no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236 and Cherepkov v. Russia (dec.), no. 51501/99, ECHR 2000-I).
The Court concludes that Article 3 of Protocol No. 1 is not applicable in the present case. It follows that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4.
(c) The applicant finally alleges that the facts relied on give rise to breach of Article 18 of the Convention. In particular, he complains of impermissible restrictions on his right to participate in the administration of local public affairs.
Article 18 prohibits the misuse by Contracting States of the power granted them in certain circumstances to limit rights and freedoms. The Court confines itself to referring to its findings under Articles 6 §§ 1 and 3 of Protocol No. 1 to the Convention and noting that there is no appearance of such misuse in the present case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. As for the court proceedings following the applicant’s extraordinary appeals, that led to the decisions of the Supreme Court of 3 September 1998, 16 September 1998 and 5 April 2000, the Court notes that the applicant filed his petition for annulment with same court in order to have the cases re-opened. On the above dates, the Supreme Court dismissed the petitions of these decisions on the ground that the conditions for the re-opening of the cases were not fulfilled.
The Court recalls that, according to established case-law, the Convention does not guarantee, as such, any right to have a case re-opened (see, mutatis mutandis, Miliani v. France, application no. 32916/96, Commission decision of 2 July 1997, DR 90-B, p. 161).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
4. Finally, the applicant complains that he has been deprived of his right to an effective remedy in respect of his complaints as required by Article 13 of the Convention.
Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
However, the case-law of the Court established that Article 13 does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (see the Boyle and Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). The Court finds that the applicant cannot be said, in the light of its findings above, to have an “arguable” claim that his rights guaranteed by the Convention have been violated.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy