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FOURTH
SECTION
CASE OF
BALAN v. MOLDOVA
(Application
no. 19247/03)
JUDGMENT
STRASBOURG
29 January
2008
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 Balan v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Josep
Casadevall,
Giovanni
Bonello,
Kristaq
Traja,
Stanislav
Pavlovschi,
Ján
Šikuta,
Päivi
Hirvelä,
judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19247/03) 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 Pavel Bălan,
on 27 February 2003.
- 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 V. Grosu.
- The
applicant alleged, in particular, that his rights under Article 1 of
Protocol No. 1 to the Convention had been infringed as a result of
the refusal of the domestic courts to compensate him for the unlawful
use of his protected work.
- The
application was allocated to the Fourth Section of the Court. On
6 October 2006 the President of that Section decided to
communicate the application to the Government. 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1938 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In 1985 the applicant published the photograph 'Soroca
Castle' in the album Poliptic Moldav. He received author's
fees for that photograph.
- In 1996 the Government adopted a decision regarding
national identity cards using, inter alia, the photograph
taken by the applicant as a background for the identity cards issued
by the Ministry of Internal Affairs of Moldova (“the
Ministry”). The applicant was not consulted and did not agree
to such a use of the photograph.
- In
1998 he requested the Ministry to compensate him for the infringement
of his rights caused by the unlawful use of the photograph he had
taken, as well as to conclude a contract with him for the future use
of the photograph.
- When his request was rejected, the applicant initiated
court proceedings against the Ministry on 10 November 1998. On 24
March 1999 the Chişinău Regional Court partly allowed his
claims and found that he had been the author of the photograph which
had been used without his agreement. The court awarded him 4,050
Moldovan lei (MDL), equivalent to 568 United States dollars
(USD). The court also obliged the Ministry to publish an apology but
rejected the applicant's request that the Ministry be ordered to
conclude a contract with him for the future use of the photograph.
- The
applicant appealed. He submitted, inter alia, that the reason
why he had not asked for the withdrawal of the identity cards already
issued in infringement of his rights and for new identity cards using
the photograph taken by him not to be issued in the future was that
this would have incurred unreasonably high costs for the Ministry and
would have caused unnecessary problems for identity card holders. He
had therefore requested the conclusion of a contract with the
Ministry.
- On
16 September 1999 the Court of Appeal quashed the lower court's
judgment and rejected the applicant's requests.
- On 22 December 1999 the Supreme Court of Justice
quashed the Court of Appeal's judgment and upheld the judgment of the
Chişinău Regional Court as regards the award to the
applicant, while rejecting his request for an apology to be
published. The court also ordered a re-examination of the case as
regards the conclusion of a contract with the applicant for the
future use of the photograph since, in its opinion, he had such a
right.
- From
1 May 2000 the Ministry ceased using the photograph taken by the
applicant as a background for identity cards.
- In a new set of proceedings the applicant requested
compensation for the financial loss caused by the continued unlawful
use of his photograph between the date of the judgment, 24 March
1999, and 1 May 2000. Since more than 260,000 identity cards had been
issued during the relevant period, he claimed 10% of the amount paid
by the identity cards' owners to the State (MDL 2,403,137). He also
claimed compensation for infringement of his moral rights (MDL
200,000).
- On 6 November 2001 the Chişinău Regional
Court awarded the applicant MDL 180,000 in compensation for pecuniary
damage and MDL 3,600 for non-pecuniary damage, while rejecting
his request to oblige the Ministry to conclude a contract with him.
- On 26 March 2002 the Court of Appeal quashed that
judgment and rejected the applicant's claims. The court found that,
while the applicant's authorship of the relevant photograph had been
clearly established, he had been compensated by the judgment of 24
March 1999. Since the court had not prohibited the use of the
photograph in future and since the applicant himself had not
requested such a prohibition, the identity cards already issued or
any cards issued in the future were no longer covered by the
Copyright and Related Rights Act 1994 (“the 1994 Act”)
(no.293-XII) (see paragraph 19 below). Accordingly, the applicant
could not allege an infringement of his rights.
- On 16 October 2002 the Supreme Court of Justice
essentially repeated the reasons given in the judgment of the Court
of Appeal and rejected an appeal by the applicant on points of law.
While confirming the applicant's intellectual property rights in
respect of the photograph he had taken, it added that an identity
card was an official document which could not be subject to
copyright.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Copyright and Related
Rights Act (no. 293-XI) of 23 November 1994 read as follows:
“Section 4
(4) The author's rights do not depend on the property
right over the material object in which the relevant protected work
is embodied. Purchasing the object does not imply the transfer to the
purchaser of any copyright set out in the present Act.
Section 6
(1) The author's rights cover literary, artistic and
scientific protected works in the form of:
...
i) ... photographic works ...;
Section 7
(1) The following shall not constitute objects of
copyright:
(a) official documents ...
Section 9
...
(2) The personal (moral) rights of the author cannot be
assigned and continue to be protected if the copyright is assigned.
Section 19
The use of the author's protected work by third persons
... is permitted on the basis of a contract concluded with the author
or with his or her successors, except for the cases mentioned in
sections 20-23.
Section 24
(1) The copyright ... may be transferred by the authors
or other copyright owners through authorship contracts.
Section 25
(1) The use of ... artistic works in breach of the
copyright of their authors is unlawful.
Section 38
(1) The owner of the copyright can request from the
person who has infringed this right:
(a) the recognition of this right;
(b) the re-establishment of the situation pertaining
before the infringement of the right and the cessation of the actions
infringing the author's rights or which may lead to such an
infringement;
(c) compensation for losses or lost revenue;
(d) transfer of the revenues obtained through the
unlawful use of the protected work, in lieu of compensation for the
losses or lost revenue;
(e) compensation of between 10,000 and 20,000 times the
minimum wage in lieu of compensation for losses or the transfer of
the revenues obtained through the unlawful use of the protected work;
(2) The sanctions mentioned under paragraph (1) (c)-(e)
above are applied in accordance with the choice of the holder of the
copyright”.
- The relevant provisions of the Administrative
Proceedings Act (no. 793) of 10 February 2000 read as follows:
“Section 4
The following cannot be challenged before administrative
courts:
...
(c) laws, Presidential Decrees with a normative
character, Government orders and decisions with a normative
character, ...”
THE LAW
- The
applicant complained of a violation of his right to a trial within a
reasonable time, as guaranteed by Article 6 of the Convention.
Article
6 § 1 of the Convention, in so far as relevant, provides:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time...”
- The
applicants also complained of a violation of Article 1 of Protocol
No. 1 to the Convention as a result of the failure to award him
compensation following the breach of his intellectual property
rights.
Article
1 of Protocol No. 1 to the Convention reads as follows:
“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.”
I. ADMISSIBILITY
- In
his initial application the applicant complained of the excessive
length of the proceedings in his case, contrary to Article 6 § 1
of the Convention. However, in his observations on the admissibility
and merits of the case he asked the Court not to proceed with the
examination of this complaint. The Court finds no reason to examine
it.
- The
Court considers that the applicant's complaint under Article 1 of
Protocol No. 1 to the Convention raises questions of fact and law
which are sufficiently serious that their determination should depend
on an examination of its merits. No grounds for declaring it
inadmissible have been established. The Court therefore declares the
complaint 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 the
complaint.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
A. Arguments of the parties
1. The Government
- The Government submitted that in examining the
applicant's case the domestic courts had applied the wrong law. The
1994 Act (see paragraph 19 above) was not applicable, since the
applicant's protected work had been created in 1985, before the
enactment of the 1994 Act. Moreover, the 1994 Act had no provisions
regarding rights over works created before its entry into force.
Accordingly, the courts should have applied the old Civil Code, in
force between 1964 and 2003. The Government advanced arguments as to
what the applicant's legal position would have been had the old Civil
Code been applied.
- The
Government also referred to the applicant's failure to request the
courts in 1999 to prohibit the further use of his photograph by the
Ministry, which he had been entitled to do under section 38 (1) (b)
of the 1994 Act (see paragraph 19 above). They considered that, as a
result, no interference with the applicant's rights had taken place
when the courts rejected his claims for compensation and when the
Court of Appeal found that the past or future use of his photograph
in issuing identity cards did not come under the protection of the
1994 Act. Moreover, since identity cards were official documents, no
intellectual property rights could be exercised over them, as found
by the domestic courts (see also section 7 of the 1994 Act, paragraph
19 above). The compensation which the applicant had received in 1999
constituted full reparation for any damage caused to him as a result
of the unauthorised use of his protected work.
- The
Government finally argued that the applicant had not had
“possessions” within the meaning of Article 1 of Protocol
No. 1 to the Convention, but only claims, which the domestic courts
had rejected and which therefore could not be the subject of
interference. Were it otherwise, any person lodging a claim before
the domestic courts could automatically invoke an interference with
his or her Convention rights.
2. The applicant
- The applicant submitted that he had had “possessions”
within the meaning of Article 1 of Protocol No. 1 to the Convention,
since intellectual property rights, according to the jurisprudence of
the Court, were included in the above notion. He also considered that
an interference with that right had taken place in the light of the
unauthorised use of his protected work. He drew certain financial
advantages from the use of his work, including when he had received
his fees when the photograph was first published in 1985 (see
paragraph 7 above) and when he had been awarded compensation in 1999
(see paragraph 13 above).
- The applicant also considered that he had a legitimate
expectation of obtaining compensation for any infringement of his
intellectual property rights, since the law provided clearly for such
a right. The domestic courts' judgments did not therefore create any
property right, which existed by virtue of the law, but only had the
function of determining the exact amount of compensation. The refusal
to award him any compensation had therefore constituted an
interference with his property right. Moreover, the courts had
awarded him compensation in 1999 in identical conditions. This
confirmed, in the applicant's view, his right to obtain such
compensation in the case of any future infringement of his rights.
- The applicant also considered that the Court of Appeal
had interfered with his property rights when it stated, in its
judgment of 24 March 1999, that, following the compensation awarded
to the applicant for the unauthorised use of the photograph taken by
him and because of his failure to request a prohibition on its future
unauthorised use, that work was no longer protected by the 1994 Act.
He considered that this limitation had not been provided for by law,
since section 38 of the 1994 Act provided for the right to claim
compensation for past violations and did not refer to on-going
breaches. Moreover, the applicant argued that he could not ask for
the prohibition of further use of his protected work since the
decision to use the photograph taken by him had been adopted by the
Government. According to the legislation in force (see paragraph 20
above), an individual could not challenge a Government decision in
court unless the decision related specifically to him or her. The
decision which included the use of his protected work had been
adopted in respect of national identity documents in general and thus
had not related to the applicant specifically. Neither did
individuals in Moldova have the right to ask the Constitutional Court
to review the lawfulness of a Government decision. The applicant
finally considered that he had been subjected to an excessive and
individual burden as a result of the court judgments.
B. The Court's assessment
1. General principles
- The
Court reiterates that Article 1 of Protocol No. 1 to the Convention
does not guarantee the right to acquire property (see
Kopecký v. Slovakia [GC], no. 44912/98,
§ 35, ECHR 2004 IX, and Van der Mussele v. Belgium,
judgment of 23 November 1983, Series A no. 70, p. 23, § 48).
Moreover, “an applicant can allege a violation of Article 1 of
Protocol No. 1 only in so far as the impugned decisions related to
his “possessions” within the meaning of this provision.
“Possessions” can be either “existing possessions”
or assets, including claims, in respect of which the applicant can
argue that he or she has at least a “legitimate expectation”
of obtaining effective enjoyment of a property right. By way of
contrast, the hope of recognition of a property right which it has
been impossible to exercise effectively cannot be considered a
“possession” within the meaning of Article 1 of Protocol
No. 1, nor can a conditional claim which lapses as a result of the
non-fulfilment of the condition” (see Kopecký,
cited above, § 35; Prince Hans-Adam II of Liechtenstein
v. Germany [GC], no. 42527/98, §§ 82-83, ECHR
2001-VIII; and Gratzinger and Gratzingerova v. the Czech Republic
(dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).
- The
concept of “possessions” referred to in the first part of
Article 1 of Protocol No. 1 has an autonomous meaning which is not
limited to ownership of physical goods and is independent from the
formal classification in domestic law: certain other rights and
interests constituting assets can also be regarded as “property
rights”, and thus as “possessions” for the purposes
of this provision. The issue that needs to be
examined in each case is whether the circumstances of the case,
considered as a whole, confer on the applicant title to a substantive
interest protected by Article 1 of Protocol No. 1 (see Iatridis
v. Greece, [GC], no. 31107/96; Beyeler
v. Italy [GC], no. 33202/96, §
100, ECHR 2000-I; Broniowski v. Poland
[GC], no. 31443/96, § 129, ECHR 2004-V; and Anheuser-Busch
Inc. v. Portugal [GC], no. 73049/01, § 63,
ECHR 2007 ...).
33. In
certain circumstances, a “legitimate expectation” of
obtaining an “asset” may also enjoy the protection of
Article 1 of Protocol No. 1 to the Convention. Thus, where a
proprietary interest is in the nature of a claim, the person in whom
it is vested may be regarded as having a “legitimate
expectation” if there is a sufficient basis for the interest in
national law, for example where there is settled case-law of the
domestic courts confirming its existence (see Kopecký,
cited above, § 52). However, no legitimate expectation can be
said to arise where there is a dispute as to the correct
interpretation and application of domestic law and the applicant's
submissions are subsequently rejected by the national courts (see
Kopecký, cited above, § 50).
2. Application of these principles to the present case
(a) Whether the applicant had
“possessions”
- The
Court reiterates that Article 1 of Protocol No. 1 is applicable to
intellectual property (see Anheuser-Busch Inc., cited above,
§ 72). In the present case, the Court notes that the
applicant's rights in respect of the photograph he had taken were
confirmed by the domestic courts (see paragraphs 10, 17 and 18
above). Therefore, unlike in the above-cited judgment of
Anheuser-Busch Inc. v. Portugal, there was no dispute in
the present case as to whether the applicant could claim protection
of his intellectual property rights. In this connection, the Court
takes note of the applicant's submission (see paragraph 29 above)
that he asked the courts to protect his already established right
over the protected work by awarding him compensation, and not to
establish his “property right” over such compensation. He
had, in the Court's opinion, a right recognised by law and by a
previous final judgment (see paragraph 13 above), and not merely a
legitimate expectation of obtaining a property right.
- The
Court notes that the Supreme Court of Justice decided, on 16 October
2002, that identity cards were official documents within the meaning
of section 7 of the 1994 Act and could not be subject to the
applicant's intellectual property rights (see paragraphs 16, 18 and 19
above). However, the court only referred to identity cards and not to
the photograph taken by the applicant, in respect of which there was
no dispute. Moreover, section 4 of the 1994 Act expressly
distinguishes between the author's rights in respect of works created
by him or her and the property right over the material object in
which that creation is embodied (see paragraph 19 above). It follows
that the finding of the Supreme Court of Justice that identity cards
could not be subject to copyright had no bearing on the applicant's
rights in respect of the photograph he had taken. This finding is
confirmed by the fact that the domestic courts found, in the first
set of proceedings, that the applicant's rights had been infringed.
The courts awarded him compensation despite the Ministry's use of the
photograph in an identical manner both before and after 1999, that is
as a background for identity cards.
-
In view of the above, the Court concludes that the applicant had a
“possession” within the meaning of Article 1 of Protocol
No. 1 to the Convention.
(b) Whether there has been interference
- The
Court also notes the Government's position that the domestic courts
had relied on legislation which was not applicable to the applicant's
case (see paragraph 25 above). However, the Court reiterates that it
is not its task to take the place of the national authorities who
ruled on the applicant's case. It primarily falls to them to examine
all the facts of the case and set their reasons out in their
decisions. In the present case, the Court does not see any reason for
questioning the domestic courts' application of a law adopted
specifically to regulate intellectual property rights issues and
which came into force before the alleged violation of the applicant's
rights.
Accordingly,
the Government's new reasons, which were raised for the first time in
the proceedings before the Court, are irrelevant (see, mutatis
mutandis, Sarban v. Moldova, no. 3456/05, § 102,
4 October 2005). The Court will therefore examine the case on
the basis of the law as applied by the domestic courts.
- In
so far as the judgment of the Supreme Court of Justice is to be
interpreted as meaning that, because of the applicant's failure to
ask the courts for a prohibition on the unauthorised use of his
protected work, such use after the 1999 judgment did not interfere
with his possessions for the purposes of Article 1 of Protocol No. 1,
the Court is unable to accept this view. The Court notes that section
25 (1) of the 1994 Act states in unequivocal terms that “the
use of ... artistic works in breach of the copyright of their authors
is unlawful”. The illegal character of unauthorised use is not
conditioned in the law by any particular act of the copyright owner,
such as a request for a court injunction against such use. The
finding of a violation of the applicant's rights in the 1999 judgment
confirms this.
- Moreover,
it cannot be said, as argued by the Government, that the applicant
tacitly accepted the use of his protected work without remuneration.
On the contrary, by lodging a new court action he clearly expressed
his view that such use was in violation of his rights. Moreover, the
fact that he consistently claimed the protection of his right by
asking the Ministry to conclude a contract with him and to pay him
author's fees or compensation (see paragraphs 10 and 15 above) is
evidence of the fact that he has continuously opposed unauthorised
use of his protected work. It follows that the applicant's failure to
request the prohibition of the unauthorised use of his work by the
Ministry could not make such use lawful as unauthorised use was
expressly prohibited by law and was opposed by the applicant.
- In
the light of the above, the Court finds that there has been
interference with the applicant's property rights within the meaning
of Article 1 of Protocol No. 1 to the Convention.
(c) Whether the interference was “lawful”
- The
Court further notes that the 1994 Act does not provide for the
termination of an author's rights by virtue of his or her failure to
ask the courts to prohibit the use of his protected work. The only
means of extinguishing the author's right is a contract with the
author or his or her successors (see sections 19 and 24 of the 1994
Act, cited in paragraph 19 above), while the author's “moral
rights” can never be transmitted to third persons (see section
9 of the 1994 Act, cited in paragraph 19 above). In addition, it is
for the author of a protected work to decide which of the penalties
provided by law he or she wants to apply in case of an infringement
of his or her rights under the 1994 Act (see section 38 of the 1994
Act, cited in paragraph 19 above).
- The
Court notes that neither the domestic courts nor the Government
referred to any specific provision in the 1994 Act which expressly
provides for the termination of an author's rights in respect of his
or her creation by virtue of a failure to prohibit its unauthorised
use. Section 38 of the 1994 Act, cited above, refers to the right to
ask for the prohibition of the unlawful use but does not attach any
negative consequences to a failure to do so.
- The
Court also notes the discrepancies in the manner in which the
domestic authorities interpreted the 1994 Act in the first
proceedings (see paragraph 13 above) and the second proceedings (see
paragraphs 17 and 18 above), even though they decided on essentially
the same legal situation. Moreover, the Government considered that
the 1994 Act did not apply at all in the applicant's case, contrary
to the position of the domestic courts. This suggests that the 1994
Act had not been sufficiently foreseeable in its application and this
in itself might be a sufficient basis for the conclusion that the
interference was not “lawful”. However, the Court does
not consider it necessary finally to decide this issue, having regard
to its conclusions set out below.
(d) Purpose and lawfulness of the
interference
- Even
assuming that the 1994 Act was sufficiently foreseeable in its
application, the Court must determine whether the interference with
the applicant's rights was proportionate to the aims pursued. The
Court notes the applicant's argument that he could not prevent
infringement of his rights since he had no standing to challenge in
court the Government decision which had enabled the unlawful use of
his protected work (see paragraphs 8, 20 and 30 above). The
Government did not comment on this. The Court considers that it does
not have to take a definitive view on this issue in view of its
findings below.
- The
Court accepts that issuing identity cards to the population serves an
undoubtedly important public interest. However, it is apparent that
this socially important aim could have been reached in a variety of
ways not involving a breach of the applicant's rights. For instance,
another photograph could have been used or a contract could have been
concluded with the applicant. The Court is unaware of any compelling
reason for the use of the particular photograph taken by the
applicant or of any impediments to the use of other materials for the
same purpose. Indeed, the photograph taken by the applicant was no
longer used as a background in identity cards after 1 May 2000, which
confirms that the public interest could be served without violating
the applicant's rights.
- It
follows that the domestic courts failed to strike a fair balance
between the interests of the community and those of the applicant,
placing on him an individual and excessive burden. There has,
accordingly, been a violation of Article 1 of Protocol No. 1 to the
Convention.
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. Damage
- The
applicant claimed 20,267 euros (EUR) for pecuniary damage and EUR
5,000 for non-pecuniary damage. He relied on the award of damages
made by the Chişinău Regional Court on 6 November 2001
(see paragraph 16 above) and the period (three years) during which he
had not been able to use that amount. He also referred to the
frustration caused to him by the use of his work without
authorisation and the refusal to compensate him. Having seen the
photograph he had taken widely used in Government-issued documents,
he expected fair compensation and was bitterly disappointed when that
was refused.
- The
Government submitted that the award made on 6 November 2001 was
irrelevant, since that judgment had been quashed and the applicant
had had no expectation of obtaining that amount. Moreover, the
judgment of 24 March 1999, which had been upheld in respect of the
award in favour of the applicant (see paragraphs 10 and 13 above),
had constituted full compensation for any damage caused to the
applicant. They argued that no damage had been caused to the
applicant, who did not submit any evidence that he had derived any
profit or otherwise benefited from his authorship of the photograph
he had taken.
- The
Court considers that the applicant must have been caused damage as a
result of the infringement of his rights in respect of the photograph
he had taken and the refusal of the domestic courts to award
compensation for that violation, the more so seeing that the
photograph had been reproduced on a large scale (see paragraph 15
above), despite the authorities' awareness of the unlawful character
of such use. Moreover, the Court finds that the award in the
applicant's favour made in 1999 (see paragraphs 10 and 13 above)
compensated him only for the infringement of his rights prior to the
initiation of the 1999 proceedings and not for the subsequent use of
the photograph taken by him.
- In
the light of the above and deciding on an equitable basis, the Court
awards the applicant EUR 5,000 for pecuniary and non-pecuniary
damage.
B. Costs and expenses
- The
applicant claimed EUR 2,872 for costs and expenses, of which EUR
2,812 for legal representation before the Court. The applicant's
lawyer submitted a contract with the applicant and a detailed time
sheet according to which he had spent 37.5 hours. As to the hourly
fee of EUR 75, the lawyer argued that it was within the limits of the
hourly rates recommended by the Moldovan Bar Association, which were
EUR 40-150.
- The
Government disagreed with the amount claimed for representation. They
considered it excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicant. They
disputed the number of hours worked by the applicant's lawyer and the
hourly rate he charged. They also argued that the rates recommended
by the Moldovan Bar Association were too high in comparison to the
average monthly salary in Moldova and referred to the non-profit
nature of the organisation Lawyers for Human Rights.
- In
the present case, regard being had to the itemised list submitted and
the complexity of the case, the Court awards the applicant EUR 2,000
for costs and expenses.
C. 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
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 the
following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) in respect of
pecuniary and non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros) in respect of costs
and expenses;
(iii) 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 29 January 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
