[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
MIHALACHI v. MOLDOVA
(Application
no. 37511/02)
JUDGMENT
STRASBOURG
9
January 2007
FINAL
09/04/2007
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 Mihalachi 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
Mrs F. Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 5 December 2006,
Delivers
the following judgment, which was adopted on this date:
PROCEDURE
- The
case originated in an application (no. 37511/02) 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”) on 26 September 2002 by a Moldovan
national Mr Nicolae Mihalachi (“the applicant”).
- The
Moldovan Government (“the Government”) were represented
by their Agent, Mr Vitalie Pârlog.
- The
applicant alleged that his rights to a fair hearing and to the
peaceful enjoyment of his possessions were breached as a result of
the quashing of a final judgment in his favour.
4 On
15 June 2005 the Court decided to communicate the application to the
Government under Rule 54 § 2 (b) of the Rules of Court. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in Chişinău.
- The
applicant worked as a prosecutor. On 15 January 1998 he was charged
with bribe-taking and on 14 May 1999 the Court of Appeal found him
guilty and sentenced him to five years’ imprisonment. By a
final judgment of 3 August 1999 the Supreme Court of Justice
acquitted him and ordered his immediate release: he claimed to have
been released two days later. The overall period of his detention
amounted to 567 days.
- The
applicant brought an action against the Ministry of Finance and his
employer seeking payment of compensation for
pecuniary and non-pecuniary damage arising from his unlawful
prosecution and detention.
- On
25 July 2001 the Rîşcani District Court ruled in his
favour and stated that there had been a violation of his right to
liberty. The court awarded him 78,055 Moldovan lei (MDL, the
equivalent of 6,945 euros (EUR) at the time) in compensation for
pecuniary damage and MDL 500,000 (EUR 44,490 at the time) in
compensation for non-pecuniary damage. The defendants appealed.
- On
6 February 2002 the Chişinău Regional Court partially
upheld the appeal, reduced the award of compensation for pecuniary
damage to MDL 27,354.77 (EUR 2,401 at the time) and awarded
another 87,000 Russian roubles (RUR, the equivalent of EUR
3,251.92 at the time) and 230 American dollars (USD) in respect of
costs and expenses incurred during the proceedings. The Regional
Court upheld the award of compensation for non-pecuniary damage. The
defendants lodged an appeal in cassation.
- By
a final judgment of 26 March 2002 the Court of Appeal partially
upheld the appeal in cassation and reduced the award of compensation
for non-pecuniary damage to MDL 75,000 (EUR 6,341 at the time).
- On
25 December 2002 the Prosecutor General lodged with the Supreme Court
of Justice a request for annulment of the above-mentioned
judgments and for a reduction in the amount of damages.
- On 5 February 2003 the
Supreme Court of Justice upheld the Prosecutor General’s
request for annulment and quashed the above-mentioned judgments. The
Supreme Court adopted a new judgment and reduced the award of
compensation for non-pecuniary damage to MDL 50,000 (EUR 3,261
at the time). It also ordered the re-opening of the proceedings in
respect of the amount of compensation for pecuniary damage. On 19
February 2003 the applicant received MDL 50,000.
- Following
the re-opening of the proceedings, on 24 June 2003 the Rîşcani
District Court ruled in favour of the applicant and awarded him
MDL 27,446.09 (EUR 1,679.69 at the time) in respect of pecuniary
damage. The remainder of the judgment provided the same as the
judgment of the Chişinău Regional Court of 6 February 2002.
On 22 July 2003 the judgment was enforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law was set out in Roşca v. Moldova,
no. 6267/02, § 16, 22 March 2005.
THE LAW
- The
applicant complained that his detention from 15 January 1998 to 3
August 1999 had been unlawful. He invoked Article 5 § 1 of the
Convention, which provides:
"Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
(a)
the lawful detention of a person after conviction by a competent
court;
(b)
the lawful arrest or detention of a person for non-compliance with
the lawful order of a court or in order to secure the fulfilment of
any obligation prescribed by law;
(c) the lawful arrest or detention of
a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so (...).”
- He
submitted that there had been a violation of Article 6 § 1 of
the Convention, mainly because the courts incorrectly applied the
law. The applicant also complained about the quashing of a final
judgment in his favour by the Supreme Court of Justice on 5 February
2003.
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
... by an independent and impartial tribunal established by law...”
- He
further complained that the Supreme Court of Justice’s judgment
of 5 February 2003 had had the effect of infringing his right to the
peaceful enjoyment of his possessions as secured by Article 1 of
Protocol No. 1, which provides:
“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
applicant alleged that he had been discriminated against by his
superiors, without providing details of the basis of this claim. He
invoked Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in this 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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The applicant’s complaint under Article 5 § 1
of the Convention
- The
applicant complained that his detention from 15 January 1998 to
3 August 1999 had been unlawful.
- The
Court notes that the applicant’s detention ended on
3 August 1999 when he was acquitted. However, his complaint
was lodged on 26 September 2002, more than six months after his
release from detention. It follows that this complaint was introduced
out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
B. The applicant’s complaint under Article 6 § 1
of the Convention about the incorrect application of the law by the
courts
- The
applicant complained that during the criminal proceedings and the
proceedings for compensation the courts had incorrectly applied the
law.
- The
Government considered that the applicant had all the necessary
procedural safeguards so as to present his case fairly before the
domestic courts.
- The
Court has examined the applicant’s complaints under Article 6
about the incorrect interpretation of the law by the courts. However,
having regard to all the material in its possession, it finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. The Court also
notes that the complaint about the unfairness of the criminal
proceedings which ended on 3 August 1999 was lodged out of time. It
follows that this part of the application must be rejected pursuant
to Article 35 §§ 1, 3 and 4 of the Convention.
C. The quashing of the final judgment in favour of the
applicant
- In
his letter of 17 July 2003 the applicant complained that on
5 February 2003 the Supreme Court of Justice had upheld the
Prosecutor General’s request for annulment and quashed a final
judgment in his favour.
- The
Government objected to the Court having taken into consideration on
its own initiative the issue of the quashing of the judgment in
favour of the applicant by the Supreme Court of Justice on
5 February 2003. They requested the Court not to examine
this issue.
- The
Court notes that in his letter of 17 July 2003 the applicant
specifically complained about the quashing by the Supreme Court of
Justice of a final judgment in his favour following the annulment
proceedings. It therefore rejects the Government’s objection to
its examination of this complaint under Article 6 of the Convention
and Article 1 of Protocol No. 1.
D. The complaint under Article 14
The
Government considered that the applicant had not substantiated his
complaint under Article 14 of the Convention and had not provided
evidence of any discrimination.
- The
Court notes that the applicant has not substantiated his complaint
under this Article. Insofar as he complained that he had been
discriminated against by his superiors, the facts and evidence
submitted by the applicant do not disclose any discriminatory
treatment in his respect.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
E. Alleged abuse of the right of petition
- In
his letter of 1 July 2005 the applicant stated that in
April and June 2005 his employer had sanctioned him and reduced his
monthly payments. He also stated that he had reason to consider the
sanctions as pressure put on him to resign; however, he did not
submit a complaint under Article 34 of the Convention.
- The
Government denied that there had been any breach of Article 34 of the
Convention, calling the applicant’s allegations “erroneous
and untrue”. They stated that the applicant had been sanctioned
for improper performance of his duties and that the sanctions had
been imposed prior to the communication of the case by the Court.
They submitted that the Court should thus declare this complaint
inadmissible for abuse, calling it “offensive” or
“defamatory”.
- The
Court notes that the applicant has made no complaint under Article 34
of the Convention that he has been hindered in the presentation of
his complaint and there is no reason to pursue the issue of its own
motion.
- As
to the Government’s submission concerning the alleged abuse,
the Court considers that an application would not normally be
rejected as abusive under Article 35 § 3 of the Convention on
the basis that it was “offensive” or “defamatory”
unless it was knowingly based on untrue facts (see the Varbanov
v. Bulgaria, no. 31365/96, § 36, ECHR 2000 X
or Rehak v. the Czech Republic, (dec.), no 67208/01, 18
May 2004). However, on the basis of the material in its possession,
the Court is unable to conclude that the applicant has based his
allegations on information which he knew to be untrue. Accordingly,
this submission fails.
F. Conclusion on admissibility
- The
Court considers that the applicant’s complaints under Article 6
§ 1 and under Article 1 of Protocol No. 1 to the
Convention, concerning the quashing of the final judgment in his
favour, raise questions of law which are sufficiently serious that
their determination should depend on an examination of the merits,
and no other 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 4 above), the Court
will immediately consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained, in substance, under Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention that by its
judgment of 5 February 2003, the Supreme Court of Justice had
quashed a final judgment in his favour and had reduced the amount of
the award for non-pecuniary damages.
- The
Government rejected the applicant’s claims and argued that,
following the re-opening of the case, the parties had enjoyed the
same procedural rights and that the re-opening had been justified.
- The
Court has found violations of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to 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 by
quashing the final judgment in favour of the applicant, the Supreme
Court of Justice breached the applicant’s right to a fair
hearing under Article 6 § 1 of the Convention and his right
to the peaceful enjoyment of possessions under Article 1 of Protocol
No. 1 to the Convention.
- There has accordingly been a violation of Article 6 §
1 of the Convention and of Article 1 of Protocol No. 1 to the
Convention in respect of the applicant.
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 MDL 450,000 (EUR 9,180) for pecuniary damage,
representing the difference between MDL 500,000, awarded by the
Rîşcani District Court on 25 July 2001 in respect of
non-pecuniary damage for his unlawful detention and MDL 50,000,
awarded by the Supreme Court of Justice on 5 February 2003. The
applicant sought compensation only in respect of the amount awarded
by the domestic courts.
- The
Government disagreed with the amount claimed by the applicant and
argued that he was not entitled to any compensation since he had been
paid MDL 50,000 in accordance with the judgment of the Supreme Court
of Justice of 5 February 2003 and MDL 63,357 in accordance with the
judgment of the Rîşcani District Court of 24 June 2003.
- The
Court considers that the applicant suffered pecuniary damage as a
result of the quashing of the final judgment of 26 March 2002. The
particular amount claimed is, however, excessive. The Court awards
the applicant the difference between the amount awarded by the final
judgment of 26 March 2002 (EUR 6,341 at the time) and the amount
received by him after its quashing (EUR 3,261 at the time), which is
EUR 3,080.
B. Non-pecuniary damage
46. The
applicant claimed compensation for non-pecuniary damage
suffered as a result of the violation of his rights, without
specifying the amount of compensation. He asked the
Court to make an assessment in accordance with its case-law on
similar issues.
- The
Government argued that the applicant had not adduced any evidence of
having suffered any stress and anxiety.
- The Court takes the view that the applicant must have
been caused a certain amount of stress and frustration as a result of
the quashing of the final judgment of 26 March 2002, which cannot be
made good by the mere finding of a violation. Making its assessment
on an equitable basis and taking into consideration the
amounts awarded by the Court in similar cases (see, for example,
Roşca v. Moldova, no. 6267/02, § 41, 22
March 2005) and the fact that the applicant had been paid the awarded
amounts shortly after the delivery of the judgments, it awards the
applicant EUR 1,800 for non-pecuniary damage.
C. Costs and expenses
- The
applicant did not claim any costs and expenses
for the Convention proceedings.
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 admissible the complaints under
Article 6 § 1 and Article 1 of Protocol No. 1 to the
Convention concerning the quashing of a final judgment in the
applicant’s case, and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,080
(three thousand and eighty euros) in respect of pecuniary damage and
EUR 1,800 (one thousand eight hundred euros) in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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 9 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos Nicolas Bratza
Deputy Registrar President
