CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 octobre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s92A1A400 { width:0.97pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 246/05 by Constantin SMOLEI against Moldova The European Court of Human Rights (Fourth Section), sitting on 19   October 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ledi Bianku,   Mihai Poalelungi,   Vincent Anthony de Gaetano, judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 24 November 2004, Having regard to the declaration submitted by the respondent Government on 28 August 2008 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, Mr Constantin Smolei, is a Moldovan national who was born in 1938 and lives in Chişinău. The Moldovan Government (“the Government”) are represented by their Agent, Mr V. Grosu. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked for “Moldovahidromaş” (M.), a State-owned company. By Government order of 19 June 1990 the Ministry of Heavy Industry of the USSR was given the right to manage M.'s assets. On 28   November 1990 the Ministry of Heavy Industry concluded with the staff employed within M.'s scientific laboratory, including the applicant, a contract for the creation of a separate association to hold and manage the laboratory (“Hidrotehnica”, hereinafter called “H.”). H. became a joint-stock company and registered its shares with the relevant authority. The Ministry of Industry of Moldova (“the Ministry”) later considered that contract to be unlawful. On 1 September 1992 it ordered H.'s liquidation. H. challenged that order in court. The Ministry also initiated court proceedings for the annulment of the contract creating H. On 22 October 1992 the Economic Court of Moldova annulled the Ministry's order since the Ministry had not been competent to order the liquidation of a company. On the same day the court accepted the Ministry's claim and declared the contract for the creation of H. null and void (“the 1992 judgment”). That judgment was not appealed against and became final. The court also ordered the liquidation of H., with the distribution of its assets to its creditors. As a result, the assets of H. were returned to M. (which was still owned by the State in the proportion of 90 %, the remaining 10 % belonging to M.'s staff), and the shares of H. were annulled. In 1994 M. was privatised: the shares belonging to the State were sold at an auction and the staff signed an agreement to become members of the newly registered private joint-stock company, preserving M.'s name. The applicant allegedly refused to sign such an agreement and thereby to transfer to M. his share in H.'s assets. In 2000 he requested the company to pay him the value of that share. He was informed that he was the owner of 1,206 shares of M. just as all the other staff members. The applicant initiated court proceedings claiming the value of his share in H.'s assets (339,000 Moldovan lei (MDL)). On 27 September 2002 the Ciocana District Court returned his action unexamined because he had failed to pay court fees (MDL 11,970, approximately 90 euros (EUR)). The applicant appealed, claiming that he had no means to pay the court fees since he had a very small pension. On an unknown date the Chişinău Regional Court accepted his appeal and ordered the hearing of the substance of his case by the lower court. On 30 September 2003 the Ciocana District Court accepted the applicant's request of a court fee waiver. It rejected his claim against M. and then ordered the applicant to pay the court fees from which he had been relieved when initiating the proceedings. On 11 December 2003 the Chişinău Court of Appeal left the applicant's appeal unexamined because of his failure to pay the court fees (MDL   8,977). On 11 February 2004 the Supreme Court of Justice quashed that decision, finding that the applicant's financial situation (he had a monthly pension of MDL 146) had not allowed him to pay those fees. The court ordered the examination of the case in substance by the Chişinău Court of Appeal. On 12 May 2004 the Chişinău Court of Appeal accepted the applicant's request for a fee waiver and examined the substance of his case. It quashed the lower court's judgment in the part concerning the court fees, finding that he could not afford to pay them. The court rejected as unfounded the applicant's claims against M., finding that he had not transferred any assets to M. and could thus not claim any compensation. In his appeal in cassation the applicant mentioned, inter alia , the lower courts' attempts to make him pay the court fee, which it was “hopeless to obtain from a pensioner”. On 21 June 2004 the Supreme Court of Justice returned the applicant's appeal unexamined due to his failure to pay the court fees (MDL 5,985, approximately EUR 416). Since the applicant failed to pay the court fees, by a final decision of 9 July 2004 the court left his appeal without examination. On 26 February 2010 the Supreme Court of Justice accepted the request of the Prosecutor General's Office for the reopening of the proceedings in view of the violation of the applicant's right of access to court, contrary to Article 6 of the Convention. On 16 March 2010 the applicant made an appeal on points of law against the decision of 12 May 2004. On 2 June 2010 the Supreme Court of Justice examined the applicant's appeal on points of law and rejected it as unfounded. It referred to the facts of the case as established, inter alia , in the Court's judgment in Moldovahidromaş v. Moldova (no. 30475/03, 27   February 2007), following which the legal force of the decision of the Economic Court of Moldova of 22 October 1992 had been restored and thus the annulment of H.'s creation confirmed. The court found that the applicant had not submitted any evidence that he had contributed any property at the time of H.'s founding. He thus could not claim any part of H.'s property, but was the owner of 1,206 shares in M. COMPLAINTS 1. The applicant complained under Article 6 of the Convention about a violation of his right to access to court. 2. He also complained, under the same Article, that the courts which had examined his case had not been “independent and impartial”. 3. The applicant finally complained under Article 1 of Protocol No. 1 to the Convention about a violation of his right to property as a result of the rejection of his pecuniary claims. THE LAW 1. The Government's unilateral declaration concerning the complaint about the alleged violation of the right of access to a court By letter dated 16 August 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue of the alleged violation of the right of access to court raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows: “[The Government referred to the judgment of the Supreme Court of Justice of 2   June 2010]: In this context, and due to the [fact that] the cause of the dispute has been remedied, the Government would like to make the following declaration: Admit the breach of Article 6 § 1 of the Convention, which provides for the right of access to a court and the violation, due to the fact that the court has not examined the applicant's appeal in cassation for the reason that the plaintiff did not pay the court fees. In regard to the application lodged and according to the European Court's case-law ( Ungureanu v. Moldova , judgment of 6 September 2007) the Government would like to [offer] the applicant just satisfaction that will affect [his] victim status. Thus, according to the specific circumstances of the present case, the Government propose the following sums of money as just satisfaction: the sum of EUR 1,000 [one thousand euros] for non-pecuniary damage and EUR 100 [one hundred euros] for costs and expenses. The Government declare that the above-mentioned proposed sums for just satisfaction 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 of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of a failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on it, from the 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. This payment will constitute the final resolution of the case. Therefore, the Government ask the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.” In a letter of 6 September 2010 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low. He requested the Court to reject the Government's proposal and to award him EUR 5,000 in compensation for the non-pecuniary damage caused to him He also claimed EUR 25,000, representing the value of his share in H.'s property, plus compensation for the effects of inflation, to be determined by the Court. 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”. It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) 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 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). The Court has established in a number of cases, including those brought against Moldova, its practice concerning complaints about the violation of Article 6 § 1 of the Convention concerning access to a court (see, for example, Kreuz v. Poland , no. 28249/95, §§ 52-57, ECHR 2001 ‑ VI, Malahov v. Moldova , no. 32268/02, §§ 25-36, 7 June 2007, Ciorap v.   Moldova , no. 12066/02, §§ 90-96, 19 June 2007, Clionov v. Moldova , no.   13229/04, §§ 35-42, 9 October 2007, and Tudor-Comert v. Moldova , no.   27888/04, §§ 32-42, 4 November 2008). Having regard to the nature of the admissions contained in the Government's declaration as well as the amount of compensation proposed – which reflects the fact that the violation complained of (the right of access to a court) has already been remedied by the judgment of 2 June 2010 – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)). 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 this part of the application (Article 37 § 1 in fine ). In view of the above, it is appropriate to strike this part of the application out of the list. 2. The applicant's complaint concerning the independence and impartiality of judges The applicant complained of the lack of independence and impartiality of the judges in the various courts which had examined his case. The relevant part of Article 6 reads as follows:   “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.” The Court notes, however, that the applicant did not submit any evidence to substantiate his claim. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 3. Alleged violation of Article 1 of Protocol No. 1 to the Convention The applicant also complained of a violation of his property right guaranteed under Article 1 of Protocol No. 1 to the Convention, which reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Court notes that the domestic courts established the absence of any legal basis for the applicant's claim to a share of H.'s property, noting he had been offered property in M. It also notes that on 22 October 1992 a court declared void the founding of H. and that the court found the annulment of that decision, in 2003, to be in breach of Article 6 and Article 1 of Protocol   No. 1 to the Convention (see Moldovahidromaş , cited above, §§ 51 and 64). Moreover, it was the final decision of 22 October 1992 which changed H.'s legal status and brought it back under M.'s control. Therefore, based on the principle of res judicata , any subsequent claim to a share in H.'s property was precluded by that decision, which had been taken well before Moldova's ratification of the Convention on 12 September 1997. In the light of the above, the Court considers that the applicant's complaint under Article 1 of Protocol No. 1 to the Convention is unsubstantiated. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court unanimously Takes note of the terms of the respondent Government's declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the part of the application concerning the right of access to a court out of its list of cases in accordance with Article 37 § 1 (c) of the Convention; and Declares inadmissible the remainder of the application.   Lawrence Early   Nicolas Bratza     Registrar   President