Maisa COGAN v Moldova - 12218/05 [2010] ECHR 1913 (2 November 2010)

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The European Court of Human Rights (Fourth Section), sitting on 2 November 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
David Thór Björgvinsson,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the declaration submitted by the respondent Government on 8 June 2010 requesting the Court to strike the application out of the list of cases,

The applicant, Ms Maisa Cogan, is an Israeli national who was born in 1949 and lives in Holon. She was represented before the Court by Mr B. Druţă, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

On 7 October 2004 the applicant travelled by air from Chişinău to Israel. The airport customs found in her purse an amount of 461 United States Dollars (USD), which she had failed to declare. The money was confiscated and the applicant was fined 60 Moldovan lei (MDL).

On an unspecified date the applicant challenged in court the decision of the Customs Department concerning the confiscation of the money and the fine.

On 1 December 2004 the Botanica District Court examined the case in the applicant’s absence and dismissed it as unfounded. The judgment was final and could not be challenged.

The applicant complained under Article 6 of the Convention and argued that the proceedings were unfair because she was not informed about the hearing.

After the communication of the present application to the respondent Government, the applicant submitted observations on the admissibility and merits of the case requesting the Court to find that there had been a breach of Article 6 of the Convention. She did not submit any claims under Article 41 of the Convention.

On 8 June 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. The text of their letter to the Court reads as follows:

“Having regard to the Court’s case-law in Ziliberberg v. Moldova (no. 61821/00, 1 February 2005) and in Rusu v. Moldova (no. 3479/04, 15 January 2008) the Government acknowledge that there was an infringement of the applicant’s rights guaranteed by Article 6 § 1 of the Convention because she had not been summoned to appear before the Botanica District Court for the hearing on 1 December 2004.

Bearing in mind the fact that the applicant did not submit any claims for just satisfaction the Government considers that she did not intend to make use of the provisions of Article 41 of the Convention.

In view of the Government’s acknowledgement of the existence of a breach of Article 6 of the Convention, we kindly request the Court to take note of the present declaration and to strike the present application out of its list of cases.”

The Court notes 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 to strike a case out of its list in particular if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also notes that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention 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 the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI, and Melnic v. Moldova, no. 6923/03, §§ 22-25, 14 November 2006).

Having regard to the nature of the admissions contained in the Government’s unilateral declaration of 8 June 2010 and to the findings in Ziliberberg v. Moldova (cited above), as well as to the fact that the applicant did not submit observations in respect of just satisfaction, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar, cited above, and Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005)).

In the light of all the above considerations, 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 the application (Article 37 § 1 in fine).

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Maisa COGAN v Moldova - 12218/05 [2010] ECHR 1913 (2 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1913.html Cite as: [2010] ECHR 1913