THIRD SECTION

DECISION

Application no . 28447/05 Gheorghe URSU against the Republic of Moldova

The European Court of Human Rights (Third Section), sitting on 4 June 2013 as a Committee composed of:

Luis López Guerra, President, Nona Tsotsoria, Valeriu Griţco , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 12 July 2005,

Having regard to the declaration submitted by the respondent Government on 15 October 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Gheorghe Ursu , is a Moldovan national, who was born in 1948 and lives in Chișinău . He was represented before the Court by Mr V. Iordachi , a lawyer practising in Chișinău .

2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol, from the Ministry of Justice.

3. The application had been communicated to the Government .

The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. The applicant was involved in a car accident on 28 November 2003. According to the applicant, a car driven by a police officer across a red light was hit by the applicant ’ s car, driving across a green light. According to the police officer, he had been driving across a green light and the applicant across a red light.

6. A criminal investigation was initiated into the fact, but on 24 December 2003 the Chişinău prosecutor ’ s office decided to discontinue the proceedings and to initiate administrative proceedings against the applicant.

7. During the investigation a number of witnesses were heard and gave contradictory statements, some supporting the applicant ’ s version of events and some that of the police officer.

8. In a letter of 17 December 2004 the applicant challenged the judge, claiming that she had agreed to ask for an expert report, but later expressed her view that he was guilty of the offence and that a motivated decision would be taken to dismiss the need for the report. On 4 February 2005 the applicant allegedly repeated his challenge. It follows from the minutes of the court hearing of 20 December 2004 that the expert was heard by the court on that date.

9. On 4 February 2005 the Centru District Court found the applicant guilty of an administrative offence and o rdered him to pay a fine of 270 Moldovan lei (MDL, the equivalent of 16.6 euros (EUR) at the time). According to the applicant, witnesses on his behalf were not heard by the court, which based its decision only on the statements of the witnesses for the police officer. It appears from the minutes of the court hearings that witnesses have been heard and that the judge refused to hear one of them repeatedly. The police officer ’ s claim for damages was left without examination since it could be lodged in separate civil proceedings.

10. The applicant appealed. On 21 February 2005 he inquired about the date on which his appeal was to be examined but he was told that the case-file had not yet been received from the lower court. However, when he again inquired about the case on 9 March 2005 he was told that the case had been examined on 22 February 2005.

11. In its decision of 22 February 2005, the Criminal Branch of the Chişinău Court of Appeal upheld the lower court ’ s judgment and rejected the appeals lodged by the applicant and the police officer. The decision did not mention the participation of any of the parties at the hearing. The decision was final.

12. On 24 August 2009 the Prosecutor General ’ s Office asked for the reopening of the case. The applicant was present and supported the request. On 17 October 2011 the Chișinău Court of Appeal accepted the request. It annulled the prosecutor ’ s decision of 24 December 2003 to start an administrative investigation against the applicant and quashed the judgments adopted earlier. It also discontinued the proceedings against the applicant. It appears that in the absence of an appeal the judgment became final.

COMPLAINTS

13. The applicant complained under Article 6 of the Convention that his case had been examined by a judge who could not be considered impartial.

14. He also complained, under the same Article, of the courts ’ failure to hear witnesses on his behalf and the failure to summon him to the hearing of the Chişinău Court of Appeal on 22 February 2005.

15. He finally complained under Article 1 of Protocol No. 1 to the Convention that he had had to pay a fine as a result of the court decisions and had had to pay damages to the other party in the domestic proceedings.

THE LAW

A. Complaint concerning the failure to summon the applicant to the hearing of the Court of Appeal

16. The applicant complained about the failure to summon him to the hearing of the Court of Appeal on 22 February 2005 and the resulting failure to hear witnesses on his behalf. He relied on Article 6 § 1 of the Convention.

17. After the failure of attempts to reach a friendly settlement, by a letter of 15 October 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government acknowledge that the applicant has suffered a breach of his rights guaranteed by Article 6 § 1 of the Convention under its criminal head as a result of non-summoning him in contravention proceedings and due to unjustified refusal to examine a witness on his behalf.

... the Government recall that the applicant ’ s situation has been redressed during the re-opened proceedings after the communication of the present case. Those proceedings were finished by the Centru District Court ’ s judgment of 17 October 2011 and the applicant, having been properly summoned and [having been able to have his witnesses heard], was fully acquitted of all charges. The domestic court left the question of just satisfaction to the Government ’ s Agent ’ s discretion. Accordingly, no further remedial measures, apart from below, would be required.

In view of that, the Government making their own assessment of the circumstances of the present case within the terms of the previous case-law, propose to pay the applicant a global sum of EUR 1,500 (one thousand five hundred euros), which is to cover pecuniary and non-pecuniary damages, as well as costs and expenses incurred by the applicant. The Government are of the opinion that the pecuniary damages claimed previously by the applicant do not reveal any link with the above-acknowledged violations and therefore should be dismissed.

The Government declare that the above sum will be converted into Moldovan lei at the rate applicable at the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to settle within this period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

18. By a letter of 19 November 2012, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. In particular, as a result of the violation of his rights he had suffered material damage, which otherwise would have been suffered by the opposing party to the domestic proceedings.

19. The Court recalls 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 in particular to strike a case out of its list if:

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

20. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

21. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) , no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) , no. 28953/03 , 18 September 2007 ).

22. The Court has established in a number of cases, including those brought against the Republic of Moldova , its practice concerning complaints about the violation of Article 6 in respect of the failure to properly summon a person to the courts ’ hearings and to hear witnesses (see, for example, Ziliberberg v. Moldova , no. 61821/00, §§ 27-36 , 1 February 2005 and Russu v. Moldova , no. 7413/05, §§ 19-28 , 13 November 2008 ).

23. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

24. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 ).

25. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

B. Other complaints

26. In his initial application the applicant complained about the alleged lack of impartiality of the judge examining his case, namely his alleged statement that an expert report was not needed because the applicant ’ s guilt was clear anyway. However, in his subsequent correspondence with the Court, including his comments to the unilateral declaration made by the Government, he never referred to this complaint.

27. Even assuming that the applicant maintains his complaint, he did not submit evidence that the judge had made the relevant statement or acted in any other manner so as to raise doubts as to his impartiality. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

28. The applicant also claimed that his right protected under Article 1 of Protocol No. 1 to the Convention had been breached as a result of his obligation to pay a fine and damages to the other party in the domestic proceedings.

29. The Court considers that following the discontinuation of the proceedings in his respect the applicant could claim the reimbursement of the fine paid, which he apparently has not done. It also notes that the applicant did not submit a copy of any judgment ordering him to pay damages to the other party in the domestic proceedings. He thus failed to substantiate his complaint in this regard. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application out of its list of cases in accordance with Artic le 37 § 1 (c) of the Convention;

Declares inadmissible the remainder of the complaints.

Marialena Tsirli Luis López Guerra Deputy Registrar President