THIRD SECTION
DECISION
Application no. 26740/08
Ion UNCU and Others
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 26 November 2013 as a Committee composed of:
Luis López Guerra, President,
Nona Tsotsoria,
Valeriu Griţco, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 30 May 2008,
Having regard to the declaration submitted by the respondent Government on 23 November 2012 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. A list of the applicants is set out in the appendix. They are all Moldovan nationals and live in Chișinău. They were represented before the Court by Mr V. Gribincea, a lawyer practising in Chişinău.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 December 2005 the Supreme Court of Justice ordered the Chișinău municipality to provide the applicants with alternative accommodation, in order to allow the return of the vacated building to its previous owner. This judgment remains unenforced to date; the applicants were not evicted and continue living in their old apartments. Before the Court the applicants complained about the non-enforcement of this judgment.
5. The case was communicated to the Government following the adoption of the pilot judgment in the case of Olaru and others (Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009).
THE LAW
6. The applicants complained about the failure to enforce the judgment of 7 December 2005. They relied on Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. The applicants also claimed that they had no effective domestic remedy against the non-enforcement of the judgment of 7 December 2005. They relied on Article 13 of the Convention.
7. After the failure of attempts to reach a friendly settlement, by a letter of 23 November 2012 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.
8. In that declaration the Government acknowledged that the applicants had suffered a breach of their rights guaranteed under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, and under Article 13 of the Convention, as a result of non-enforcement of the judicial decision within a reasonable time. The Government proposed to pay each of the eight applicant households a global sum of 3,600 euros (EUR) for a non-enforcement period of 94 months, as follows:
- EUR 3,600 for the household of the applicants Mr I. Uncu, Ms G. Uncu, Ms M. Uncu, Mr M. Uncu, Ms A. Hadjianastasiu and Ms L. Dediu;
- EUR 3,600 for the household of the applicants Mr F. Unciulenco, Ms A. Unciulenco, Mr P. Unciulenco, Ms N. Unciulenco and Ms V. Dicusara;
- EUR 3,600 for the household of the applicants Mr I. Nichitin, Ms. N. Nichitin, Mr. N. Nichitin;
- EUR 3,600 for the household of the applicants Mr S. Tofan, Ms E. Tofan, Mr V. Tofan and Ms A. Brodescu;
- EUR 3,600 for the household of the applicants Mr S. Erhan, Ms S. Erhan, Mr A. Erhan, Ms C. Erhan;
- EUR 3,600 for the household of the applicants Ms L. Rilea and Ms M. Rilea;
- EUR 3,600 for the applicant Mr V. Belousov; and
- EUR 3,600 for the household of the applicants Mr E. Mesin, Ms I. Mesin and Ms A. Mesin.
The Government considered that the pecuniary damages claimed by the applicants were not substantiated and that there was no causal link between the violation found and the damages claimed. For these reasons, they should be dismissed.
9. The awarded sum, which is to cover any non-pecuniary damage as well as costs and expenses 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 European Convention on Human Rights. 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.
10. By a letter of 23 April 2013, the applicants expressed the view that the Government’s unilateral declaration should not be accepted by the Court because the amount proposed by the Government was insufficient. They expressed the view that the declaration did not secure the enforcement of the judgment of 7 December 2005 and that they were entitled to compensation of the market value of apartments, in particular:
- EUR 40,896 for the household of the applicants Mr F. Unciulenco, Ms A. Unciulenco, Mr P. Unciulenco, Ms N. Unciulenco;
- EUR 21,297 for the applicant Ms V. Dicusara;
- EUR 40,896 for the household of the applicants Mr I. Nichitin, Ms. N. Nichitin, Mr. N. Nichitin;
- EUR 40,896 for the household of the applicants Mr S. Tofan, Ms E. Tofan, Mr V. Tofan;
- EUR 21,297 for the applicant Ms A. Brodescu;
- EUR 40,896 for the household of the applicants Mr S. Erhan, Ms S. Erhan, Mr A. Erhan, Ms C. Erhan;
- EUR 33,456 for the household of the applicants Ms L. Rilea and Ms M. Rilea;
- EUR 21,297 for the applicant Mr V. Belousov;
- EUR 21,297 for the applicant Mr E. Mesin;
- EUR 21,297 for the household of the applicants Ms I. Mesin and Ms A. Mesin; and
- EUR 95,649 for the household of the applicants Mr I. Uncu, Ms G. Uncu, Ms M. Uncu, Mr M. Uncu, Ms A. Hadjianastasiu and Ms L. Dediu.
They also claimed EUR 4,000 for non-pecuniary damage for each of the twenty-eight applicants and EUR 3,051 for costs and expenses.
11. The Court recalls 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 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”.
12. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
13. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).
14. The Court has established in a number of cases, including those brought against the Republic of Moldova, its practice concerning complaints about the violation of Articles 6 § 1 and 13 of the Convention and of Article 1 of Protocol No. 1 in regard to the non-enforcement of final court judgments.
15. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases (see, Olaru v. Moldova (just satisfaction), no. 476/07, §§ 14-19, 12 October 2010; Chetruş and 24 others v. Moldova (dec.), nos. 15953/07 et seq., 25 January 2011; Tudor Peciul and 9 others v. Moldova (dec.), nos. 15279/07 et seq., 7 September 2010; Modranga and others v. Moldova (dec.), nos. 33328/06 et seq., 4 June 2013; Antoci v. Moldova (dec.), no. 9209/08, 17 September 2013) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
In regard to the applicants’ claims for pecuniary damage the Court notes that similarly to the applicants in the cases of Panov v. Moldova (no. 37811/04, §§ 26-28, 13 July 2010) and Jomiru and Crețu v. Moldova (no. 28430/06, 17 April 2012), in the present case according to the final judgment of 7 December 2005, the Municipality was ordered to rent out to the applicant families alternative accommodation. In those cases, the Court dismissed the applicants claims for the full value of an apartment as being without any legal basis (Panov, cited above, § 28, and Jomiru and Crețu, cited above, § 44). In the present case, the Court sees no reason to depart from that finding. Indeed, the Court notes that throughout the period of non-enforcement the applicant continued to live in their old apartment and did not have to spend money on renting new accommodation.
16. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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).
17. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
18. As regards the question of implementation of the Government’s undertakings, the Committee of Ministers remains competent to supervise this matter in accordance with Article 46 of the Convention (see the Committee’s decisions of 3 June 2010 concerning the implementation of the Olaru and others judgment (see the Decision of the Committee of Ministers about the enforcement of the judgment of Olaru and others adopted at the 1136th DH Meeting on 6-8 March 2012, CM/Del/Dec(2012)1136/15 and the decision in Modranga and others, cited above).
19. The Court has a discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). In the present case, it decides to award the applicants jointly EUR 1,000 in respect of costs and expenses in addition to the amount offered by the Government.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Articles 6 and 13 of the Convention and under Article 1 of Protocol No. 1 and of the modalities for ensuring compliance with the undertakings referred to therein;
Holds that the respondent State is to pay the applicants jointly EUR 1,000 (one thousand euros), plus any tax that may be chargeable on the applicants, in respect of costs and expenses, in addition to the amounts offered in their unilateral declaration;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Marialena TsirliLuis López Guerra
Deputy RegistrarPresident
Appendix
1.
1
UNCU Ion, born in 1943
2
UNCU Galina, born in 1945
3
UNCU Maria, born in 1974
4
UNCU Mihai, born in 1993
5
HADJIANASTASI Alexandra, born in 2002
6
DEDIU Ludmila, born in 1968
2.
7
UNCIULENCO Fedosii, born in 1959
8
UNCIULENCO Ana, born in 1961
9
UNCIULENCO Pavel, born in 1981
10
DICUSARA Varvara, born in 1942
11
UNCIULENCO Natalia, born in 1988
3.
12
NICHITIN Iurie, born in 1973
13
NICHITINA Neonila, born in n 1970
14
NICHITIN Nicolai, born in 1996
4.
15
TOFAN Serghei, born in 1974
16
TOFAN Elena, born in 1978
17
BRODESCU Anastasia, born in 1928
18
TOFAN Valentin, born in 2000
5.
19
ERHAN Serghei, born in 1966
20
ERHAN Svetlana, born in 1966
21
ERHAN Adrian, born in 1988
22
ERHAN Carolina, born in 1990
6.
23
RÎLEA Ludmila, born in 1986
24
RÎLEA Maria
7.
25
BELOUSOV Victor, born in 1967
8.
26
MEŞIN Eduard, born in 1971
27
MEŞINA Irina, born in 1971
28
MEŞINA Antonina, born in 1991
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