FOURTH SECTION

CASE OF ISTRATE v. MOLDOVA (No. 2)

( Application no. 28790/03 )

JUDGMENT

STRASBOURG

10 June 2008

FINAL

10/09/2008

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 Istrate v. Moldova (no. 2),

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

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early , Section Registrar ,

Having deliberated in private on 20 May 2008 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 28790/03) 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 Andrei Istrate (“the applicant”), on 29 August 2003 .

2 . The Moldovan Government (“the Government”) were represented by their Agent at the time, Mr V. P ârlog .

3 . The applicant alleged , in particular, that, by refusing to examine his appeal on points of law, the Supreme Court of Justice breached his right of access to court guaranteed by Article 6 § 1 of the Convention .

4 . On 13 February 2006 the President of the Fourth Section of the Court decided to give notice of 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

5 . The applicant was born in 1937 and lives in Chişinău . He is a pensioner.

6 . On an unspecified date he brought civil proceedings against the Straseni Local Council claiming compensation of 195, 5 00 Moldovan l ei (MDL) (approximately 14,000 euros ( EUR )) for the alleg ed illegal confiscation by the Soviet authorities of his family ’ s house back in 1949 .

7 . On 26 December 2002 , after having exempted the applicant f rom the duty to pay court fees, the Straseni District Court examined the merits of the case and dismissed it as manifestly ill-founded.

8 . On 7 May 2003 the Chişinău Regional Court dismissed the applicant ’ s appeal on the same grounds . It did so also after exempting the applicant from the duty to pay court fees.

9 . The applicant lodged an appeal on points of law and requested , inter alia , to be exempted from the obligation to pay court fees , on account of his poor financial situation . He presented evidence showing that after the payment of all commodities, only MDL 2 were left from his monthly pension.

10 . On 12 August 2003 the Supreme Court of Justice refused to examine the applicant ’ s appeal on points of law on the ground he had failed to pay court fees. It stated that exemption from the obligation to pay court fees was im possible at the stage of an appeal on points of law.

II. RELEVANT DOMESTIC LAW

11 . The relevant provisions of the Code of Civil Procedure read as follows:

“Section 85. Exemption from the payment of court fees

...

(4) Depending on his or her financial situation, the person may be exempted by the judge (the court) from payment of court fees entirely or in part.

Section 437. Content of the recourse request

...

(2) An appeal on points of law shall be accompanied by a proof of payment of the court fees; the provisions of Articles 85 ... do not apply.”

12 . According to s ection 98 of the Code of Civil Procedure the losing party should pay the court fees.

13 . According to Law No. 1216/92 on Court Fees, the court fees for a case similar to the present one are 3% of the value of the action. The court fee for the appeal is 75% of the initial fee and for the appeal on points of law is 50% of the initial fee.

THE LAW

14 . The applicant complained that his right of access to court as guaranteed under Article 6 § 1 of the Convention was violated as a result of the refusal of the Supreme Court of Justice to examine his cassation appeal because of his failure to pay the court fees.

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 by a tribunal ....”

I. ADMISSIBILITY OF THE COMPLAINTS

15 . The applicant complained under Article 2 of the Convention that his right to life was violated by the State and argued that unknown persons attempted to br eak into his apartment and to kill him. The applicant is convinced that those pe rsons were State agents. Moreover, the applicant argued that the State attempted to kill him by constantly increasing the price of commodities while at the same time keeping his pension at a very l o w level. The Court considers this complaint to be manifestly ill-founded . I t must therefore be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

16 . At the same time, t he Court considers that the applicant ’ s complaint under Article 6 § 1 raise s questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other 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 complaints .

I I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

17 . The applicant complained that his right of access to court as guaranteed under Article 6 § 1 of the Convention was violated as a result of the refusal of the Supreme Court of Justice to examine his cassation appeal because of his failure to pay the court fees.

18 . The Government argued that the applicant ’ s complaint was manifestly ill-founded and that it was reasonable to restrict access to the third level of jurisdiction in order to ensure the efficient administration of justice.

19 . The Court notes that t he issues raised in the present case are identical to th ose found to give rise to a violation of Article 6 in Clionov v. Moldova ( no. 13229/04, § 41 , 9 October 2007 ) . In that case the Court found, inter alia , that the provision of the Civil Code, instituting a blanket prohibition on granting court fee waivers in an appeal on points of law proceedings , raised of itself an issue under Article 6 § 1 of the Convention. Given the fact that the same provision of the Civil Code was applied in the present case by the Supreme Court to refuse to examine the applicant ’ s appeal on points of law, the Court finds no reasons to depart from its conclusion in Clionov .

20 . Accordingly, there has been a violation of Article 6 § 1 of the Convention.

I II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

21 . 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

22 . The applicant claimed EUR 30,010 in respect of pecuniary damage suffered and EUR 20,000 in respect of non-pecuniary damage.

23 . The Government considered the amount s claimed by the applicant excessive and unreasonable.

24 . The Court considers that the applicant must have suffered non-pecuniary damage as a result of the violation found above. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 . Insofar as the claim for pecuniary damage is concerned, the Court considers that there is no causal link between the violation found and any alleged pecuniary loss and therefore rejects it.

B. Costs and expenses

25 . The applicant also claimed EUR 100 for the costs and expenses incurred before the Court.

26 . The Government did not agree with the amount claimed, stating that it was excessive and that the applicant had failed to prove the alleged representation expenses.

27 . The Court considers that the applicant must have incurred secretarial expenses during the proceedings before it . Therefore the Court awards the applicant the entire amount claimed .

C. Default interest

28 . 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

1. Declares admissible the complaint under Article 6 § 1 of the Convention and inadmissible the remainder of the application ;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3. 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 1,0 00 ( one thousand e uros ) in respect of non-pecuniary damage and EUR 100 (one hundred euros ) in respect of costs and expenses , 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;

4 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 10 June 2008 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza Registrar President