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FOURTH
SECTION
CASE OF
BRAGA v. MOLDOVA
(Application
no. 74154/01)
JUDGMENT
STRASBOURG
14
November 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Braga v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
F. Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 24 October 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 74154/01) 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 Dumitru Braga (“the
applicant”), on 2 August 2001.
- The
applicant was represented by Mr V Nagacevschi, from “Lawyers
for human rights”, a non-governmental organisation based in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr A. Pârlog.
- The
applicant alleged, in particular, that his right to a fair hearing
and his right to the peaceful enjoyment of his possessions were
breached as a result of the quashing of the final judgment in his
favour of 21 November 2000 and the late enforcement of the judgment
of 21 February 2001.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court).
- On
17 March 2005 a Chamber of that Section decided to communicate the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
25 February 1999 the applicant was acquitted of a criminal offence.
He initiated court proceedings against the Ministry of Finance
claiming compensation for unlawful prosecution.
- On
5 May 2000 the Căuşeni District Court found in favour of
the applicant and awarded him 951 Moldovan lei (MDL) (the equivalent
of 84 euros (EUR) at the time) in
compensation for pecuniary damage caused. The claim for compensation
for non-pecuniary damage was rejected.
- On
6 July 2000 the Chişinău Tribunal awarded MDL 40,000 in
compensation for non-pecuniary damage caused and upheld the District
Court’s award in respect of pecuniary damage.
- On
21 November 2000 the Court of Appeal reduced the award for
non-pecuniary damage to MDL 20,000 (the equivalent of EUR 1,917
at the time) and upheld the rest of the judgment. This
judgment was final and enforceable.
- On
18 January 2001 the Prosecutor General requested the annulment of all
previous judgments and the reduction of the award for non-pecuniary
damage, as part of an extraordinary procedure.
- On
21 February 2001 the Supreme Court of Justice upheld the Prosecutor
General’s request and annulled all the previous judgments. It
adopted a new judgment whereby it reduced the award for non-pecuniary
damage to MDL 2,000.
- That
judgment was final and enforceable. It was enforced in August 2002
(the applicant received the equivalent of EUR 84 for pecuniary damage
and EUR 150 in respect of non-pecuniary damage).
- The
applicant submitted that Government decision no. 59 of 19 January
1998 (see paragraph 15 below) prohibited the forced execution of
judgments against State property unless the Ministry of Finance had
given its agreement. The Government have not commented on this
statement.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in the Court’s judgment
in Roşca v. Moldova (no. 6267/02, 22 March 2005, §§
16 - 17).
In
addition, the relevant provision of Government decision no.59 of
19 January 1998 reads as follows:
“2. ... the uncontested transfer of financial
means of the State from the bank accounts of the State Tresury is
prohibited. Enforcement warrants and other documents relating to the
uncontested transfer of financial means of the State for the purpose
of paying debts owed by institutions financed by the State budget
shall be forwarded for enforcement to the Central Treasury of the
Ministry of Finance”.
THE LAW
- The
applicant complained that the quashing of the final judgment of 21
November 2000 violated his right to “equality of arms”
within the meaning of Article 6 § 1 of the Convention. He later
submitted that his initial complaint was part of the more general
problem of “legal certainty” similar to that in Roşca
v. Moldova, cited above, and noted that the Government had failed
to comment on this issue despite their awareness of that case. He
further complained that the delay in enforcing the judgment of
21 February 2001 had violated his right to have his case
examined “within a reasonable time” within the meaning of
Article 6 § 1.
The
relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... within a reasonable time by an independent and impartial tribunal
established by law...”
I. ADMISSIBILITY OF THE COMPLAINTS
- The
Court considers that the applicant’s complaints under Article 6
§ 1 of the Convention raise questions of law which are
sufficiently serious that their determination should depend on an
examination of the merits. No grounds for declaring them inadmissible
have been established. The Court therefore declares these complaints
admissible. In accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 5 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Right to a fair hearing
- The
applicant complained that the judgment of the Supreme Court of
Justice of 21 February 2001, which set aside a final judgment in his
favour, had violated Article 6 § 1 of the Convention.
- The
Government rejected the applicant’s claim and argued that,
following the re-opening of the case, the parties enjoyed the same
procedural rights and that the re-opening had been justified.
- The
Court reiterates its power “to review the circumstances
complained of by an applicant in the light of the entirety of the
Convention’s requirements. In the performance of its task, the
Court is free to attribute to the facts of the case, as found to be
established on the evidence before them, a characterisation in law
different from that given by the applicant or, if need be, to view
the facts in a different manner. Furthermore, it has to take account
not only of the original application but also of the additional
documents intended to complete the latter by eliminating initial
omissions or obscurities” (Poltorachenko v. Ukraine,
no. 77317/01, § 25, 18 January 2005). It will
therefore examine the applicant’s complaint as a “legal
certainty” issue under Article 6 § 1 of the Convention.
- The
Court has found violations of Article 6 § 1 of the
Convention in numerous cases raising issues similar to those in the
present case (see, among other authorities, Brumărescu v.
Romania [GC], no. 28342/95, §§ 61 and 74, ECHR
1999 VII, and Roşca v. Moldova, no. 6267/02,
22 March 2005, §§ 29 and 32).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
- Having
regard to its case-law on the subject, the Court finds that the
quashing of the final judgment of 21 November 2000 in favour of the
applicant breached the applicant’s right to a fair hearing
under Article 6 § 1 of the Convention.
B. Right to a hearing “within reasonable time”
- The
applicant also complained about a violation of his right to a hearing
“within a reasonable time” as guaranteed by Article 6 §
1 of the Convention. He noted that the last judgment in his case had
been adopted on 21 February 2001 which was enforced only a year and a
half later.
- The
Government considered the period of enforcement to be reasonable and
that the enforcement authority had taken all reasonable measures to
ensure the execution of the award. The late enforcement was the
result of a lack of allocations in the State budget for enforcement
purposes for the years 2000-2002.
- The
Court recalls its finding of a violation of Article 6 § 1 of the
Convention as a result of the quashing of the final judgment in the
applicant’s favour. It does not consider it necessary to
examine separately the complaint regarding the delay in enforcing the
judgment resulting from that quashing.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicant claimed EUR 3,028 in compensation for the pecuniary damage
caused by the quashing of the judgment of 21 November 2000 and the
late enforcement of the judgment of 21 February 2001.
- The
Government considered these amounts to be excessive and asked the
Court to reject the claims.
- The
Court notes that the applicant has not claimed a violation of his
rights under Article 1 of Protocol No. 1 to the Convention and that
it has found a violation of Article 6 § 1 of the Convention.
Accordingly, it awards the applicant EUR 1,767, representing the
amount (EUR 2,001) of which he was deprived as a result of the
quashing of the final judgment in his favour, less the amount of EUR
234 which he has already received.
B. Non-pecuniary damage
- The
applicant also claimed EUR 5,000 for the quashing and late
enforcement mentioned above.
- The
Government considered this claim to be excessive and asserted that
the applicant had not submitted any evidence to substantiate it.
- The
Court considers that the applicant must have suffered a certain
amount of distress and frustration as a result of the quashing of the
final judgment in his favour, bearing in mind also that the award had
been made to compensate him for the unlawful actions of State agents.
It awards him EUR 2,000 in compensation for non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 1,200 in respect of his legal representation.
The Government stated that the sum claimed was unreasonably high.
- The
Court recalls that in order for costs and expenses to be included in
an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(Roşca v. Moldova, no. 6267/02, § 45, 22 March
2005).
- Having
regard to the materials in the file and to its case-law on the
subject, the Court awards the applicant EUR 600 for costs and
expenses.
D. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the quashing
of the final judgment of 21 November 2000;
- Holds that it is not necessary to examine
separately the complaint under Article 6 § 1 of the Convention
in respect of the delay in enforcing the judgment of 21 February
2001;
- Holds:
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final under Article 44 §
2 of the Convention the following amounts to be converted into the
currency of the respondent State at the rate applicable on the date
of settlement:
(i) EUR
1,767 (one thousand seven hundred and sixty seven euros) in respect
of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
600 (six hundred euros) in respect of costs and expenses; and
(iv) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nicolas Bratza
Deputy
Registrar President
