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FOURTH SECTION

 

 

 

 

 

 

CASE OF CACUCI AND S.C. VIRRA & CONT PAD S.R.L. v. ROMANIA

 

(Application no. 27153/07)

 

 

 

 

 

 

JUDGMENT

(Revision [1] )

 

 

 

 

 

 

STRASBOURG

 

13 November 2018

 

 

 

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 Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania, (request for revision of the judgment of 17 January 2017),

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

Paulo Pinto de Albuquerque, President ,
Vincent A. De Gaetano,

Krzysztof Wojtyczek,

Iulia Antoanella Motoc,

Marko Bošnjak,

Gabriele Kucsko-Stadlmayer,

Egidijus Kūris, judges,

and Marialena Tsirli, Section Registrar ,

Having deliberated in private on 23 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 27153/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Romanian national, Ms Floare Cacuci ("the first applicant"), and by S.C. Virra & Cont Pad S.R.L. ("the second applicant"), a single-member private Romanian company owned by the first applicant, on 19 April 2007.

2. In a judgment delivered on 17 January 2017, the Court held that there had been a violation of Article 8 of the Convention in respect of the search performed on the first applicant's bag, which included the seizure of an orange notebook; that there had been no violation of Article 8 of the Convention in respect of the home search and the seizure of other various items on 21 October 2005, and finally, that there had been no violation of Article 13 taken in conjunction with Article 8 of the Convention. The Court also decided to award the applicants 4,500 euros (EUR) for non-pecuniary damage and EUR 500 for costs and expenses and dismissed the remainder of the claims for just satisfaction.

3. On 14 June 2017 the Government informed the Court that they had learned that Ms Cacuci had died on 28 December 2016. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.

4. On 9 November 2017 the Court considered the request for revision and decided to give the applicants' representative four weeks in which to submit any observations. Those observations were received on 11 December 2017.

THE LAW

THE REQUEST FOR REVISION

5. The Government requested revision of the judgment of 17 January 2017, which they had been unable to execute because the first applicant, Ms Cacuci, had died before the judgment had been adopted. They asked that the case be consequently struck out of the Court's list of cases also in view of the failure of the applicant's heirs to inform the Court about their mother's death and to express their wish to pursue the proceedings in her stead. Alternatively, they requested that the just satisfaction part of the judgment be amended so as to introduce the applicant's heirs in her stead.

6. In reply, Ms Cacuci's representative submitted that the heirs, Ms Carmen Florina Fodor and Mr Bogdan Florin Fodor, had expressed their wish to pursue the proceedings in their mother's stead, being thus entitled to receive the sums awarded to their deceased mother. He further argued that the judgment delivered on 17 January 2017 had been adopted on 29 November 2016 when the applicant was still alive. In his view the provisions of Rule 80 of the Rules of Court were therefore inapplicable in the present case.

7. The relevant parts of Rule 80 of the Rules of Court provide that:

"A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.

..."

8. The Court considers that the death of the applicant constitutes a fact of "decisive influence" on the outcome of the judgment within the meaning of Rule 80 § 1. The Court takes note of the fact that neither Ms Cacuci's representative, nor her heirs had informed the Court about the death of the applicant or justified in any way this failure (see, by way of contrast, Nicolae Augustin Rădulescu v. Romania (revision), no. 17295/10, § 9, 19 May 2015). Furthermore, the Court is prepared to accept that this decisive fact "could not reasonably have been expected to be known to" the Government, who gained knowledge of the death of the applicant on 30 May 2017 and filed a request for revision of the judgment on 14 June 2017, that is within the time-limit provided for in Rule 80.

9. In these circumstances, the Court accepts the Government's request for revision of the judgment of 17 January 2017 (see, for instance, Bolovan v. Romania (revision), no. 64541/01, § 11, 20 September 2011).

10. The Court further recalls that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed in a timely manner a wish to pursue the application, without providing any explanation for such failure (see Association of Victims of Romanian Judges and Others v. Romania (revision), no. 47732/06, §§ 9-11, 22 March 2016 and, mutatis mutandis , Manushaqe Puto and Others v. Albania (revision), nos. 604/07and 3 others, § 9, 4 November 2014). It further finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the present application.

11. Accordingly, the application should be struck out of the Court's list of cases in accordance with Article 37 § 1 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to revise the judgment as a whole and to strike the case out of the list.

Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Paulo Pinto de Albuquerque
              Section Registrar President