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FOURTH
SECTION
CASE OF ASITO v. MOLDOVA
(Application
no. 40663/98)
JUDGMENT
(Just
satisfaction)
STRASBOURG
24
April 2007
This judgment is final
but it may be subject to editorial revision.
In the case of Asito v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr R.
Maruste,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40663/98) against the Republic
of Moldova lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the Moldovan incorporated insurance company,
ASITO (“the applicant”), on 5 February 1998.
- In
a judgment delivered on 8 November 2005 (“the principal
judgment”), the Court held there had been a violation of the
applicant company's rights provided by Article 6 § 1 and Article
1 of Protocol No. 1 to the Convention (see ASITO v. Moldova,
no. 40663/98, 8 November 2005).
- Under
Article 41 of the Convention the applicant sought just satisfaction
in the amount of 2,388,949 euros (EUR).
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards the applicant's claim for pecuniary
and non-pecuniary damage, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach.
THE FACTS
- The
applicant is a Moldovan incorporated insurance company, with its seat
in Chişinău.
- The
applicant company had a dispute with a third company concerning the
fulfilment by the latter of a contract between them. On 23 September
1997 the Appeal on Points of Law Chamber of the Economic Court
allowed a request by the Prosecutor General lodged under Article 38
§ 3 of the Law on Economic Courts, and quashed a final
judgment of 1 August 1997 in the applicant company's favour by
which the latter was awarded 327,474.75 Moldovan lei (MDL) (the
equivalent of EUR 62,780 at the time).
- On
24 December 1997, the Supreme Court of Justice allowed a request for
annulment lodged by the Prosecutor General's Office in another set of
proceedings and quashed two final judgments (of 26 July 1996 and of
23 September 1997) in favour of the applicant company by which
the contract between it and the third company was declared legal and
binding. According to that contract the applicant company was
entitled to receive the sum of MDL 269,500, payable in monthly
instalments.
- Subsequently, the Prosecutor General's Office filed an
action with the Economic Court of the Republic of Moldova seeking the
confiscation of the profit which the company had obtained as a result
of the contract declared null and void on 24 December 1997. On 2
February 1999 the Economic Court ordered ASITO to pay the State MDL
186,945.00 (the equivalent of EUR 18,765 at the time).
THE LAW
- On
9 February 2006 the Court received from the parties a document
containing a friendly settlement agreement which read inter alia
as follows:
“...The applicant agrees that the finding of a
violation of Articles 6 § 1 and 1 of Protocol No. 1 to the
Convention constitutes in itself sufficient just satisfaction in
respect of the non-pecuniary damage.
...The Government shall pay the applicant MDL
186,945...
and MDL 187,432...
within three months from the date on which this case will be struck
off the list of cases by the Court...
1. The Government shall:
(a) promote during 2006 the adoption of a Law
on Insurance and of a Law concerning Compulsory Insurance of
Vehicles;
(b) conduct a policy oriented towards the
protection and development of competition and limitation of
monopolistic activities within the sphere of insurance.
2. ...The Government shall modify during 2006
section 38 of Law No. 970 of 24 July 1996 on Economic Courts.
3. The applicant company shall suspend its
application no. 40663/98... for a period of 12 months after the
signature of this settlement in order for point 1(a) of the
settlement to be executed. Once point 1(a) is executed, the applicant
company will withdraw its application no. 40663/98 and will declare
that it has no further claims against the Government.
...”
- On
8 February and 6 March 2007 the Court received from the applicant
company two letters stating inter alia that:
“...On 21 and 22 December 2006 the Parliament
adopted the Laws on Insurance and concerning Compulsory Insurance of
Vehicles”.
“...the company wishes to withdraw its application
... and declares that it does not have further claims against the
Government.”
- The
Court takes formal note of the above agreement. It observes that its
purpose is to put an end to the dispute. It further observes that
under the terms of the settlement thus reached the applicant will be
paid compensation for the pecuniary prejudice it has suffered, that
the Government have already adopted the legislation referred to in
the agreement and that the applicant will withdraw all the
compensation claims against the respondent State before the Court.
- Having
examined the terms of the agreement reached, the Court considers that
it is equitable within the meaning of Rule 75 § 4 of the Rules
of Court and that it is based on respect for human rights as defined
in the Convention and its Protocols (Article 37 § 1 in fine
of the Convention and Rule 62 § 3 of the Rules of Court) (see
Maurice v. France (just satisfaction - friendly settlement)
[GC], no. 11810/03, §§ 34-35, ECHR 2006 ...).
- Accordingly,
the remainder of the case should be struck out of the Court's list
(Article 37 § 1 (b) of the Convention and Rule 43 § 3).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes formal note of the agreement between the
parties and the arrangements made to ensure compliance with the
undertakings given therein (Rule 43 § 3 of the Rules of Court);
- Decides to strike the remainder of the case out
of its list of cases.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
