CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 13 décembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .sD6E1DABD { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5362FFEB { width:4.87pt; display:inline-block } .sA910B41D { width:150.2pt; display:inline-block } .sDC975C9 { width:189.42pt; display:inline-block }       SECOND SECTION             CASE OF IURII v. THE REPUBLIC OF MOLDOVA   (Application no. 24446/09)                             JUDGMENT       STRASBOURG   13 December 2016       This judgment is final but it may be subject to editorial revision. In the case of Iurii v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström, President,   Valeriu Griţco,   Georges Ravarani, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 22 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24446/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Boris Iurii (“the applicant”), on 23 April 2009. 2.     The applicant was represented by Mr A. Chiriac, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.     On 23 June 2010 the application was communicated to the Government. THE FACTS 4.     The applicant was born in 1967 and lives in Chișinău. 5.     On 2 October 2008 the Chișinău Court of Appeal delivered a judgment acknowledging the applicant’s entitlement to a disability pension. Owing to the lack of an appeal, the judgment became final on 22 October 2008. 6.     On 1 December 2008 the Ministry of Defence lodged an appeal on points of law. 7.     On 4 February 2009 the Supreme Court of Justice allowed the appeal on points of law, quashed the judgment of 2 October 2008 and remitted the case for a fresh examination on the merits. After several rounds of proceedings, on 2 March 2011 the Supreme Court of Justice finally acknowledged the applicant’s entitlement to a disability pension. 8.     Meanwhile, after communication, the Prosecutor General, following a request from the Government Agent, lodged an application for revision with the Supreme Court of Justice, seeking the reopening of the proceedings and redress for the violation of the applicant’s rights. In those proceedings, the applicant claimed 29,069.17 Moldovan lei (MDL) in respect of pecuniary damage, MDL 25,000 in respect of non ‑ pecuniary damage, MDL   29,784.60 for legal costs and MDL 4,000 for miscellaneous expenses. On 23   June 2011 the Supreme Court of Justice found a violation of the applicant’s rights as a result of the quashing of the final judgment in his favour. It set aside the judgment of 4   February   2009 and the subsequent judgments adopted in the reopened proceedings and decided to restore the final judgment of 2 October 2008 in the applicant’s favour. The court then awarded the applicant MDL 15,000 (equivalent to 890 euros (EUR)) in respect of non-pecuniary damage, MDL 15,000 for legal costs and MDL   1,000 for miscellaneous expenses. The court dismissed the applicant’s claims in respect of pecuniary damage, arguing that they could not be examined by direct application of Article 41 of the Convention. THE LAW I.     ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 9.     The applicant complained that the quashing of the final judgment of the Chișinău Court of Appeal delivered in his favour on 2 October 2008, following an appeal on points of law lodged outside the statutory time-limit, had violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal” Article 1 of Protocol No. 1 “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.” 10.     The applicant also claimed that he had no effective domestic remedy against the quashing of the judgment dated 2 October 2008. He relied on Article   13 of the Convention, which reads as follows: Article   13 “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.” A.     Admissibility 11.     The Government asked the Court to declare the application inadmissible because the applicant had lost his victim status after the Supreme Court of Justice on 23 June 2011 had acknowledged the violation of his rights, had restored the final judgment in his favour and had awarded him compensation in respect of non-pecuniary damage and costs and expenses. They considered that the calculation and award of pecuniary damages was a matter for the assessment of the domestic courts. 12.     The applicant disagreed and argued that the domestic court had not awarded him compensation in respect of pecuniary damage and had not granted in full his claims for non-pecuniary damages and for costs and expenses and that for this reason he had not lost his victim status. 13.     The Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Eckle v. Germany , 15 July 1982, §   69 et seq., Series A no. 51; Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, §   44, ECHR 1999 ‑ VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR   2001 ‑ X). 14.     In the instant case it is true that the Supreme Court of Justice held that there had been a violation of the applicant’s rights under Article 6 of the Convention and that it awarded him some compensation. However, the Court finds that the question of the applicant’s victim status as regards the redress for the violation of his rights is inextricably linked to the merits of the complaint. Therefore, it considers that the two issues should be joined and examined together. 15.     The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible. B.     Merits 16.     The applicant argued that the quashing of the final judgment in his favour had breached the principle of legal certainty and had thus violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No.   1 to the Convention. He complained that the redress awarded by the domestic courts had been insufficient. 17.     The Government acknowledged that there had been a violation of Article   6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. However, they argued that the redress awarded by the domestic courts had been sufficient and adequate. The assessment of pecuniary damage was a matter primarily for the domestic courts and the applicant could and should initiate separate civil proceedings to seek compensation for such damage. 18.     The Court firstly reiterates that, under the subsidiarity principle, it falls first to the national authorities to redress any violation of the Convention. 19.     The question of whether a person may still claim to be the victim of an alleged violation of the Convention essentially involves an ex post facto examination by the Court of whether the redress afforded domestically was appropriate and sufficient, having regard to the just satisfaction as provided for under Article 41 of the Convention (see, among other authorities, Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; Jensen and   Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003; and Nardone v.   Italy (dec.), no. 34368/02, 25 November 2004). 20.     The Court observes that in its judgment of 23 June 2011 the Supreme Court of Justice found a violation of the applicant’s rights as a result of the quashing of the final judgment in his favour. In addition to the said finding of a violation, the court restored the judgment in the applicant’s favour and awarded the applicant the equivalent of EUR 890 in respect of non-pecuniary damage and the equivalent of EUR 950 for legal costs and miscellaneous expenses. The court did not award any pecuniary damages, arguing that such claims could not be examined by direct application of Article 41 of the Convention. 21.     In the light of the material in the file and in view of the particular circumstances of the case, the Court considers that the redress provided domestically has not effectively and sufficiently remedied the impugned state of affairs. As regards the first condition for the loss of victim status, the Court notes that the authorities acknowledged the violation of the applicant’s rights. As regards monetary compensation, the Court observes that the applicant obtained EUR 890 in respect of non-pecuniary damage but was not able to obtain any compensation in respect of pecuniary damage. The applicant submitted to the domestic court an expert report, according to which a delay of three years in the acknowledgement of his entitlement to a disability pension had resulted in pecuniary damage of MDL   29,069.17 (equivalent to EUR 1,728). The domestic court dismissed his claims for procedural reasons not imputable to the applicant but not as unsubstantiated (contrast with Vladimir Kolobov v. Russia (dec.), no.   26528/03, 28 June 2011). 22.     The Court may, in principle, accept a lower award of compensation by the domestic authorities than it would award itself. However, in the present case, the Court considers it clear that the applicant must have suffered pecuniary damage as a result of his being unable to obtain a disability pension from 2008 to 2011. This loss was sustained as a result of the abusive quashing of the final judgment in his favour. The failure of the domestic courts to award compensation under this head is therefore manifestly unreasonable having regard to the Court’s case ‑ law. 23.     In these circumstances, while it is true that the national authorities acknowledged the breach alleged in the present case, the applicant was not able to obtain adequate redress in respect of the abusive quashing of the final judgment in his favour. Therefore, he may still claim to be a victim within the meaning of Article 34 of the Convention. The Court thus dismisses the Government’s preliminary objection concerning the applicant’s victim status. 24.     For these reasons, and having regard to its case-law on the subject, the Court considers that in the instant case the quashing of the judgment acknowledging the applicant’s entitlement to a disability pension was incompatible with the principle of legal certainty and violated his rights guaranteed under Article 6 of the Convention and under Article 1 of Protocol No. 1 to the Convention (see Popov v. Moldova (no. 2) , no.   19960/04, §§   52-58, 6 December 2005; Oferta Plus SRL v. Moldova , no.   14385/04, §§   104-07 and 112-15, 19   December 2006   ; Melnic v.   Moldova , no. 6923/03, §§ 38-44, 14 November 2006   ; and Istrate v.   Moldova , no.   53773/00, §§ 46-61, 13   June 2006). 25.     The Court does not consider it necessary to rule on the complaint under Article 13 because Article 6 § 1 is the lex specialis in relation to the applicant’s complaint, and the requirements of Article 13 in this context are absorbed by those of Article 6 § 1 (see, mutatis mutandis , Popov v. Moldova (no. 2) , cited above, § 55). II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 27.     The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage and EUR 1,500 in respect of non-pecuniary damage. 28.     The Government objected to the amounts sought, arguing that the assessment of pecuniary damage was a matter primarily for the domestic courts and that the non-pecuniary damage afforded by the domestic courts had been sufficient. 29.     The Court notes that, unlike before the domestic courts, the applicant failed to submit an expert report or another document explaining the calculation of the claimed amount of pecuniary damage. For this reason, the Court rejects this claim. On the other hand, ruling on equitable basis, it awards the applicant EUR   1,500 in respect of non-pecuniary damage. B.     Costs and expenses 30.     The applicant did not submit any claims for costs and expenses. C.     Default interest 31.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Joins to the merits the Government’s preliminary objection concerning the applicant’s victim status and rejects it;   2.     Declares the application admissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;   4.     Holds that there is no need to examine the complaint under Article 13 of the Convention;   5.     Holds (a)     that the respondent State is to pay the applicant, within three months EUR   1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Moldovan lei at the rate applicable at the date of settlement: (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   6.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Hasan Bakırcı   Stéphanie Mourou-Vikström Deputy Registrar   President