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FOURTH
SECTION
CASE OF
GUSOVSCHI v. MOLDOVA
(Application
no. 35967/03)
JUDGMENT
STRASBOURG
13
November 2007
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 Gusovschi v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35967/03) 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 four Moldovan nationals, Ms Valentina
Gusovschi, Mr Sergiu Gusovschi, Mr Vasile Gusovschi and Mr Anatol
Gusovschi (“the applicants”), on 12 September 2003.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicants alleged, in particular, that their right to a judgment
within a reasonable time had been violated. They also made a number
of complaints regarding alleged unlawful acts against them by the
local authorities aimed at removing them from their village.
- The
application was allocated to the Fourth Section of the Court. On
3 December 2005 a Chamber of that Section decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1949, 1953, 1919 and 1957
respectively. The first two applicants live in Hagimus; Mr V.
Gusovschi lives in Tighina and Mr A. Gusovschi is interned in a
psychiatric hospital in Chişinău. Ms V. Gusovschi is a
second-degree invalid and Mr A. Gusovschi a first-degree
invalid.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicants have been in conflict with various local and regional
authorities and with their neighbours.
1. Proceedings regarding the disconnection of the
applicants' house from the natural gas system
- In September 1999 the applicants' house was
disconnected from the natural gas system owing to their failure to
pay the full price of the gas used. On 29 May 2000 Mr S. Gusovschi
initiated court proceedings against the system's operator
“Moldova-Gaz” and the Prefect of Tighina County seeking
the re-connection of the house to the gas system and payment of
damages.
- On 26 December 2000 the Tighina Regional Court accepted
his claims. On 18 April 2001 the Court of Appeal quashed that
judgment and ordered a re-hearing of the case because one of the
defendants had not been summoned to court.
- It
appears that the courts allowed the other three applicants to join Mr
S. Gusovschi's case as co-plaintiffs.
- On 28 January 2002 the Tighina Regional Court struck
the case out of its list because of the failure by the applicants to
appear at several of its hearings.
- On 14 November 2002 the Court of Appeal quashed
that judgment and ordered a re-hearing of the case, finding that the
applicants had not been summoned to court and that the proceedings
had been protracted.
- On an unknown date the applicants asked for the
transfer of the case to another court. On 6 February 2003 the Tighina
Regional Court forwarded the request to the Supreme Court of Justice,
which rejected it on 5 March 2003.
- On 17 March 2004 the Tighina Court of Appeal rejected
their claims as unfounded. On 19 May 2004 the Supreme Court of
Justice quashed that judgment and ordered a full re-hearing of the
case. On 8 September 2004 the Supreme Court of Justice refused to
re-examine its judgment of 19 March 2004.
- On
27 October 2004 the applicants sought the removal of one of the
judges of the Tighina Court of Appeal. On 9 November 2004 the Supreme
Court of Justice rejected this complaint.
- On 26 January 2005 the Tighina Court of Appeal
rejected most of the applicants' complaints, finding that they had
persistently refused to submit the necessary documents to the
defendant in order to allow the re-connection to the natural gas
system in accordance with the law. Moreover, no evidence had been
adduced of any damage caused to the applicants. The court also found
that the proceedings had lasted a considerable period of time before
the courts and it therefore accepted the applicants' main claim and
ordered the re-connection of their house to the natural gas system,
subject to the submission of the relevant documents by the
applicants.
- On
30 March 2005 the Supreme Court of Justice upheld that judgment,
which became final.
2. Requests for the initiation of criminal proceedings
- In
numerous separate proceedings the applicants requested the opening of
criminal investigations against a number of persons, most of them
being their neighbours who had allegedly damaged the applicants'
property and had attempted to drive them away from the village.
Several complaints concerned the alleged failure of the local police,
the prosecution and other authorities to react to their complaints
about unlawful acts committed by the applicants' neighbours and their
dog. On each occasion a prosecutor refused to open criminal
proceedings, having verified the case file and given detailed reasons
for the refusal.
- A
prosecutor's refusal to open a criminal investigation against the
Prefect of Tighina County because of the disconnection of the
applicants' house from the natural gas system was challenged in
court. On 27 January 2004 the Buiucani District Court dismissed the
complaint as unfounded. On 25 February 2004 the Court of Appeal
upheld that decision.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the new Code of Civil Procedure, in force
after 12 June 2003, read as follows:
“Article 4: Aims of civil procedure
The aims of civil procedure include the just
examination, within a reasonable time, of cases...”
“Article 192: Time-limits for examination of civil
cases
(1) Civil cases shall be decided by the first-instance
court within a reasonable time. The criteria for determining the
reasonable time are: the complexity of the case, the conduct of the
parties, and the conduct of the courts. The court shall ensure
observance of the reasonable time requirement in dealing with a case.
In examining a specific case on appeal, higher courts shall verify
observance with the reasonable time requirement.”
THE LAW
- The
applicants complained that there had been a violation of their rights
under Article 3 of the Convention.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicants further complained of a violation of their right to a
trial within a reasonable time, as guaranteed by Article 6 of the
Convention. They also complained, under the same Article, about the
refusal of the various authorities to open criminal proceedings
against their neighbours and the police.
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 8 and Article 1
of Protocol No. 1 to the Convention as a result of the damage to
their assets.
Article
8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
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.”
- The
applicants further complained, without giving details, of a violation
of their rights under Articles 13, 14 and 17 of the Convention.
Article
13 reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article
14 reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article
17 reads:
“Nothing in [the] Convention may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
- The
applicants lastly complained of a violation of their right to move
freely within the territory of their own country, contrary to Article
2 of Protocol No. 4 to the Convention, the relevant parts of which
read:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence...
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
I. ADMISSIBILITY
- The
Court notes that in their observations the applicants made several
new complaints which had not been mentioned in the initial
application, including the alleged expropriation of two apartments
and the unlawful detention of Mr A. Gusovschi in a psychiatric
institution without medical justification. Such complaints cannot be
examined by the Court within the framework of the instant
application, the applicants having the right to submit them in a
fresh application if they so wish.
- The
Court also considers that, even assuming that Articles 3, 6, 13, 14
and 17 of the Convention, as well as Article 1 of Protocol No. 1 and
Article 2 of Protocol No. 4 to the Convention are applicable to the
present case, the applicants have not substantiated their complaints
under these Articles. The applicants describe, in a confused manner
and without submitting relevant evidence, that they had been the
subject of ill-treatment, property destruction and genocide with the
aim of physically exterminating them and of driving them away from
their village. The Court notes that the applicants lodged numerous
complaints attempting to settle their disputes with their neighbours
through State authorities, and then complained about the authorities'
refusal to initiate criminal proceedings against the neighbours and
against the officials who had refused to intervene. It also notes
that the local administration, the police, the prosecution and other
authorities have given exhaustive answers to some of these
complaints, while treating as vexatious, not without reason, certain
other, repeated complaints. On the rare occasions when the applicants
challenged the authorities' decisions, their appeals were dismissed
as unfounded. The applicants did not submit sufficient evidence and
reasons for the Court to doubt the correctness of the domestic
authorities' decisions.
- Accordingly,
the Court concludes that these complaints are manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention and must be rejected under Article 35 § 4.
- The
Court considers that the applicants' complaint under Article 6 of the
Convention regarding the length of the proceedings raises questions
of law which are sufficiently serious for their determination to
warrant an examination of the merits. It moreover considers that no
other ground for declaring it inadmissible has been established and
therefore declares it 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
this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants considered that the length of the proceedings regarding
the disconnection of their house from the natural gas system was
excessive.
- The
Government disagreed. They considered that the applicants had
themselves contributed to most of the delays in the proceedings by
lodging numerous appeals and applications to have judges removed, and
by failing to appear at numerous court hearings (see paragraph 11
above).
A. Period to be taken into consideration
- The
Court notes that the relevant proceedings were initiated on 29 May
2000 and ended with the final judgment of the Supreme Court of
Justice of 30 March 2005. Accordingly, the relevant period amounted
to four years and ten months.
B. Reasonableness of the length of the proceedings
- The
Court will assess the reasonableness of the length of the proceedings
in the light of the circumstances of the case and having regard to
the criteria laid down in its case-law, in particular the complexity
of the case, the conduct of the applicant and of the relevant
authorities, and the importance of what was at stake for the
applicant in the litigation (see, among other authorities,
Styranowski v. Poland, judgment of 30 October 1998,
Reports of Judgments and Decisions 1998 VIII, § 47).
1. Complexity of the case
- The
Court considers that the case was not particularly difficult to
determine as the courts did not need to have recourse to expert
advice, to examine many witnesses or to undertake other
time-consuming activities. As the length of the proceedings cannot be
explained in terms of the complexity of the issues involved, the
Court will examine it in the light of the conduct of the applicants
and of the national authorities.
2. Conduct of the applicants
- The Court notes the Government's submission that the
applicants had contributed in a decisive manner to the length of the
proceedings by refusing to submit the necessary documents to the
defendant (see paragraph 16 above). It also notes that in their court
action the applicants asked for the reconnection of their house to
the gas system and claimed damages for the period of time during
which the house had been disconnected (see paragraph 8 above). In
this connection, the Court considers that even if the applicants had
submitted the relevant documents after initiating the court
proceedings, thus allowing the gas company to reconnect their house,
this would not have affected the on-going proceedings in the part
concerning the claims for damages for the period of time during which
the house had not been connected.
In
the light of its findings below regarding the conduct of the
authorities, the Court does not consider the applicants' failure to
submit documents to be a decisive element, although it can be taken
into account when dealing with any claims for just satisfaction.
- The
Court notes, moreover, the Government's position that the applicants
had failed to appear in court when summoned on numerous occasions. It
observes that the court decision on which that position is based was
annulled by the higher court, which found that the applicants had not
been summoned to the relevant court hearings (see paragraph 12
above).
- It
follows that at least a part of the delays for which the Government
blamed the applicants had not been the result of their actions but
rather that of the domestic courts.
3. Conduct of the authorities
- The
Court notes that the domestic courts remained inactive during the
period from 18 April 2001, when the Court of Appeal ordered a
re-hearing of the case, until 28 January 2002, when the Tighina
Regional Court struck the case out of its list of cases. As found on
14 November 2002 by the Court of Appeal, the lower court had
failed to summon the applicants to hearings during this period. The
court also found that, by that time, the proceedings had been
protracted (see paragraph 12 above).
- There
was a further period of inactivity between 14 November 2002 and
17 March 2004, interrupted by a one-month period during which the
courts examined the applicants' request to have the case transferred
to another court (see paragraph 13 above).
- The
Government have not submitted a reasonable explanation for these
delays.
- Moreover,
the Court notes that the case was repeatedly referred back for
re-examination and was considered by the courts on four occasions
(see paragraphs 9, 12 and 14 above). In this connection the Court
reiterates that, although it is not in a position to analyse the
quality of the case-law of the domestic courts, it considers that,
since the remittal of cases for re-examination is usually ordered as
a result of errors committed by lower courts, the repetition of such
orders within one set of proceedings discloses a serious deficiency
in the judicial system (see Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003, and Pavlyulynets
v. Ukraine, no. 70767/01, § 51, 6 September 2005).
- The
Court observes that the domestic courts themselves found that the
proceedings had lasted an excessive period of time (see paragraph 12
above) and yet they allowed further delays to occur, only to find
again that the delay in the proceedings had been excessive (see
paragraph 16 above). Moreover, they refused to award any compensation
to the applicants.
4. What was at stake for the applicants
- Lastly,
the Court notes that the proceedings concerned the applicants' right
to have their house re-connected to the gas system so that they could
heat their house. The length of the proceedings was such that the
applicants had to wait five winters to obtain a final judgment. This
necessarily put the applicants' health at risk. The Court is also
mindful of the fact that one of the applicants living in the house is
a second-degree invalid.
5. Conclusion
- On
the basis of the above-mentioned periods of inactivity and the
repeated re-hearing of the case, and having regard to the
circumstances of the instant case and the overall length of the
proceedings, the Court concludes that there was an unreasonable delay
in dealing with the applicants' case.
- There
has accordingly been a violation of Article 6 § 1 of 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
applicants claimed 1,030,800 United States dollars (USD) in
compensation for the damage caused to Mr Sergiu Gusovschi. This
amount covered the value of two apartments allegedly confiscated by
the Soviet authorities and salaries not received owing to his alleged
persecution. They left to the Court's discretion the determination of
the amount of damages to be awarded for the alleged violations of the
rights of the other applicants.
- The
Government considered these amounts entirely unrealistic and asked
the Court to reject all of the applicants' claims for just
satisfaction.
- The
Court refers to its decision to reject as inadmissible all of the
applicants' complaints except the one regarding the length of the
proceedings. It therefore sees no causal link between the violation
found and most of the claims made. However, the Court considers that
the applicants must have been caused a certain amount of stress and
frustration as a result of the delay in the proceedings, considering
the importance of the proceedings to the applicants. At the same
time, the Court takes into account that some of the delays were
caused by the applicants themselves (see paragraphs 16 and 35 above).
Deciding on an equitable basis, the Court awards them jointly 1,000
euros (EUR) for non-pecuniary damage.
B. Costs and expenses
- The
applicants made no claims under this head.
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 admissible the applicants' complaint
under Article 6 § 1 of the Convention concerning the length of
proceedings, and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, 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 amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
