Resolution CM/ ResDH (2010) 102 [1]

Execution of the judgment of the European Court of Human Rights

Gurov against Moldova

(Application No. 36455/02, judgment of 11/07/2006, final on 11/10/2006 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the right to a fair trial before a tribunal “established by law” in that the appellate court which examined the applicant ’ s case was presided by a judge whose term of office had expired (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)102

Information about the measures to comply with the judgment in the case of

Gurov against Moldova

Introductory case summary

The case concerns the violation of the applicant ’ s right to a fair trial before a tribunal “established by law”, due to the expiry of the term of office of one of the judges who ruled in her case (violation of Article 6, paragraph 1). On 5 October 2001 a first-instance court ruled in favour of the applicant, a party to a civil dispute. On 16 April 2002, following an appeal “in the interests of the law” lodged by the Prosecutor General, the Court of Appeal overturned the first-instance court ’ s decision . Subsequently the applicant found out that the term of office of the judge presiding at the appeal hearing had expired in 2000.

At the relevant time, in the absence of legislative framework governing the appointment of judges, there was a practice according to which judges whose term of office had expired, were tacitly authorised to continue to exercise their functions for an undetermined period, until such time as the President of the Republic decided the question of their nomination.

In those circumstances, the Court considered that the presiding judge ’ s participation in the hearing on the applicant ’ s case had had no legal basis. In addition, the European Court found that that practice was contrary to the principle that the organisation of courts in a democratic society must not depend on the discretion of the executive.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

1 200 EUR

1 200 EUR

Paid on 17/11/2006

b) Individual measures

The European Court recalled that where it has found that an applicant ’ s case has been decided by a tribunal which was not independent and impartial within the meaning of Article 6, paragraph 1, of the Convention, it has considered that, in principle, the most appropriate form of relief would be to ensure that the applicant was granted in due course a rehearing of the case by an independent and impartial tribunal. The Court further noted that under the Moldovan law it was possible for the applicant to obtain a re-hearing of her civil case in the light of the Court ’ s finding (paragraph 43 of the judgment). Accordingly, the Court decided not to grant any just satisfaction (paragraph 44).

Following the European Court ’ s judgment, the applicant requested the reopening of the proceedings in her case. On 1 November 2006, the Supreme Court of Justice (Civil and Administrative Chamber) granted the applicant ’ s request for re-opening, quashed the decision of the Court of Appeal of 16 April 2002, and referred the case for re-hearing to the Court of Appeal. On 15 February 2007, the Court of Appeal confirmed the decision of the first-instance court of 5 October 2001, ruling in favour of the applicant.

II. General measures

On 22 July 2005 new provisions governing the appointment of judges were introduced in the Law on the status of judges of 20 July 1995. They provide that judges are first appointed for a 5-year term by the President of the Republic of Moldova at the proposal of the Supreme Council of Magistrates. At the end of this period, judges are appointed by the President until they reach 65 years.

Candidatures of judges put forward by the Supreme Council of Magistrates, for 5-year term or for a term of office which expires when they reach the age-limit, may be rejected by the President within 30 days. However, the President may refuse a candidate only once and solely on grounds set forth in the law.

The European Court ’ s judgment has been translated and published in the Moldovan Official Journal as well as on the website of the Ministry of Justice ( www.justice.md ) and sent out to the relevant authorities and domestic courts.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Moldova has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies .