Simon HERSCOVITS v Romania - 41216/04 [2012] ECHR 174 (10 January 2012)

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Application no. 41216/04
Simon HERSCOVITS against Romania
and 2 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 10 January 2012 as a Committee composed of:

Ján Šikuta, President,
Ineta Ziemele,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above applications lodged on 2 September 2004, 3 March 2005 and 10 May 2010 respectively,

Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications out of the list of cases and the applicants’ replies to the declarations,

The applicants are Romanian nationals, with the exception of the applicant in application no. 41216/04, who is a citizen of the USA. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, from the Ministry of Foreign Affairs.

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

All applications concern the length of civil proceedings in which the applicants were either defendants or respondents. The length of the proceedings was respectively of:

The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts. The applicants also raised various other complaints in respect of the same sets of proceedings.

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them in a single decision.

The applicants complained about the length of the civil proceedings under Article 6 § 1 of the Convention. This provision provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applications regarding the length of the domestic proceedings. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The application was lodged by Simon Herscovits, a US citizen born in 1914 and residing in New York, USA. He was represented before the Court by Mr S. Andon, a lawyer practising in Bucharest.

By letter of 22 July 2011, the Government sent a unilateral declaration, providing as follows:

“The Government declare, by way of this unilateral declaration, their acknowledgement of the excessive delay in the domestic proceedings engaged by the applicant Simon Herscovits. The Government are prepared to pay to the applicant as just satisfaction the sum of EUR 1,500, amount which they consider reasonable in the light of the Court’s case-law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable to the personal account indicated by the applicant within three months from the date of the notification of the decision pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said period, the Government undertake to pay simple interest on it, from 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. Therefore, the Government respectfully invite the Court rule that the examination of the present application is no longer justified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention.”

The application was lodged by Jozsef and Ottilia Ferenczi, born in 1944 and 1946 respectively and residing in Oradea. They were represented before the Court by Ms L. Moisi, a lawyer practising in Oradea.

By letter of 28 July 2011, the Government sent a unilateral declaration, providing as follows:

“The Government declare, by way of this unilateral declaration, their acknowledgement of the excessive delay in the domestic proceedings engaged by the applicants. The Government are prepared to pay jointly to the applicants as just satisfaction the sum of EUR 2,000, amount which they consider reasonable in the light of the Court’s case-law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable in Romanian lei at the rate applicable on the date of the payment to the personal account indicated by the applicants within three months from the date of the notification of the decision pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said period, the Government undertake to pay simple interest on it, from 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. Therefore, the Government respectfully invite the Court rule that the examination of the present application is no longer justified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention.”

The application was lodged by Mihai and Garafira Andrieşi, born in 1959 and 1964 respectively and residing in Suceava.

By letter of 26 July 2011, the Government sent a unilateral declaration, providing as follows:

“The Government declare, by way of this unilateral declaration, their acknowledgement of the existence of a violation of Article 6 § 1 of the Convention regarding the excessive delay in the domestic proceedings. The Government are prepared to pay jointly to Mr Mihai Andrieşi and Ms Garafira Andrieşi as just satisfaction the sum of EUR 1,200, amount which they consider reasonable in the light of the Court’s case-law. This sum is to cover all damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable in Romanian lei at the rate applicable on the date of the payment to the personal account indicated by the applicants within three months from the date of the notification of the decision pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said period, the Government undertake to pay simple interest on it, from 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. Therefore, the Government respectfully invite the Court rule that the examination of the present application is no longer justified and to strike the application out of its list of cases, pursuant to Article 37 § 1 (c) of the Convention.”

The applicants expressed the view that the sums mentioned in the Government’s declarations were unacceptably low and therefore refused the amounts proposed by the Government.

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.”

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 applicants wish the examination of the case to be continued.

To this end, the Court will examine carefully the declarations 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).

The Court has established in a number of cases, including those brought against Romania, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (Abramiuc v. Romania, no. 37411/02, §§103-109, 24 February 2009).

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

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 complaints on length of proceedings (Article 37 § 1 in fine).

Referring to Articles 6, 13 and 14 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention, the applicants complained of further aspects related to the above proceedings.

Having regard to all the materials in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

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

Decides to strike the applications out of its list of cases in so far as they relate to the above complaint in accordance with Article 37 § 1 (c) of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Simon HERSCOVITS v Romania - 41216/04 [2012] ECHR 174 (10 January 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/174.html Cite as: [2012] ECHR 174