Poate cere succesorul într-un proces despăgubirile morale cerute inițial de persoana care a fost succedată?
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Obligaţia de a dovedi faptul pricinuirii prejudiciului moral (suferinţelor psihice sau
fizice suportate) o exercită partea vătămată, de aceea în cererea despre compensarea prejudiciului moral aceasta trebuie să indice de către cine, în ce circumstanţe şi în baza căror acţiuni.
Această reglementare o găsiți în punctul 28 a HOTĂRÎREA PLENULUI CURŢII SUPREME... mai detaliat DE JUSTIŢIE A REPUBLICII MOLDOVA Cu privire la aplicarea de către instanţele de judecată a legislaţiei ce reglementează repararea prejudiciului moral.
( http://jurisprudenta.csj.md/search_hot_expl.php?id=81 )
Succesorul, astfel, nu este partea vatamata căruia i-au fost cauzate suferințe psihice sau fizice pentru a putea cere despăgubiri.
Vedeţi Manualul judecătorului (2013), pagina 1050, aici: http://drept.usm.md/public/files/Manual-judecator-cauze-civile-2013f2697.pdf
Succesiunea în dreptul la despăgubire şi în obligaţia de despăgubire.
Repararea prejudiciului moral are ca scop oferirea unei satisfacţii victimei şi, prin urmare,
chiar dacă suferinţa s-a cauzat prin încălcarea unui drept patrimonial (de exemplu, neplata
salariului, vânzarea unui produs defectuos), ea va fi despăgubită doar... mai detaliat victimei. În cazul
decesului victimei înainte de încasarea sumei despăgubirii, urmează să constatăm că dreptul la despăgubire s-a stins în temeiul art. 664 şi 1446 ale Codului civil. Conform art. 1447 succesorii conservă dreptul de a proteja drepturile nepatrimoniale ale defunctului, care, de regulă, sunt metode nepatrimoniale (dezminţiri, scuze publice etc.).
Dacă rudele apropriate şi soţul vor suferi şi ele vreun prejudiciu moral în rezultatul
decesului cauzat victimei primare, aşa cum s-a analizat mai sus, lor li se recunoaşte o acţiune în despăgubire, însă nu prin efectul moştenirii dreptului la repararea prejudiciului (iure alieno sau iure succesionis), ci în mod independent.
Cum rămîne cu cauza Lukanov vs Bulgaria, cînd CEDO a satisfăcut satisfacția echitabilâ și anume prejudiciul moral succesorului?!
În cauza Lukanov într-adevăr aşa s-a decis, iar CtEDO a făcut referinţă la următorul caz:
CASE OF AHMET SADIK v. GREECE
26. The Court notes, firstly, that the applicant was convicted by the Greek courts of disturbing, through his writings, the public peace and the peace of the citizens of... mai detaliat Western Thrace. Without prejudice to its decision on the objection relating to non-exhaustion of domestic remedies, the Court considers that Mr Ahmet Sadik's widow and children have a legitimate moral interest in obtaining a ruling that his conviction infringed the right to freedom of expression which he relied on before the Convention institutions.
Furthermore, it notes that the applicant was sentenced to fifteen months' imprisonment, commutable to a fine of GRD 1,000 per day of detention, which sum he paid. Like the Delegate of the Commission, the Court considers that the applicant's heirs also have a definite pecuniary interest under Article 50 of the Convention (art. 50).
The Court accordingly finds that Mrs Isik Ahmet and her two children, Mr Levent Ahmet and Miss Funda Ahmet, have standing to continue the present proceedings in the applicant's stead.
Similar s-a spus în CASE OF KOZIMOR v. POLAND:
CASE OF KOZIMOR v. POLAND
(Application no. 10816/02)
12 April 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 Kozimor v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
SirNicolas Bratza, President,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 20 March 2007,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 10816/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Piotr Kozimor (“the applicant”), on 22 December 2000.
2. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. On 6 September 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the applicant's pre-trial detention, lack of equality of arms in the proceedings for prolonging his pre-trial detention and the censorship of his correspondence 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.
4. On 23 September 2005 the applicant's sister, Mrs Renata Kozimor, informed the Court's Registry that the applicant had died on 12 August 2005. She stated that she wished to continue the proceedings before the Court in her late brother's stead.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lived in Przemyśl, Poland.
1. The criminal proceedings
6. On 14 August 1997 the applicant was arrested by the police. On 15 August 1997 the Przemyśl District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide.
7. Subsequently, the applicant's pre-trial detention was prolonged on several occasions, in particular at the hearing held on 5 November 1998.
8. On 21 December 1998 the Przemyśl Regional Court (Sąd Wojewódzki) convicted the applicant of homicide and sentenced him to 25 years' imprisonment.
9. On 29 April 1999 the Court of Appeal quashed the impugned judgment and remitted the case.
10. On 2 June 1999 the Przemyśl Regional Court (Sąd Okręgowy) decided to prolong the applicant's pre-trial detention. The court gave the following reasons:
“Prolongation of the applicant's detention on remand is justified by the fact that the applicant has been accused of homicide.”
11. On 24 February 2000 the Przemyśl Regional Court dismissed the applicant's request for release. The reasons of the decision are as follows:
“[The applicant] has been accused of having committed [a homicide] and the original reasons for keeping him in detention are still valid.”
12. On 3 March 2000 the Przemyśl Regional Court further prolonged the applicant's pre-trial detention. The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence.
13. On 12 April 2000 the trial court held the first hearing. Subsequently, ten hearings were held.
14. On 2 June and 29 August 2000 the applicant's pre-trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him in custody.
15. On 14 September 2000 the Rzeszów Court of Appeal dismissed the applicant's appeal against the decision of 29 August 2000.
The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions.
16. On 28 December 2000 the Rzeszów Regional Court gave judgment. The court convicted the applicant and sentenced him to 25 years' imprisonment. The applicant appealed.
17. On 17 May 2001 the Rzeszów Court of Appeal (Sąd Apelacyjny) amended the impugned judgment. The court sentenced the applicant to 15 years' imprisonment. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
18. On 28 February 2002 the Supreme Court dismissed his cassation appeal as being manifestly ill-founded.
2. The monitoring of the applicant's correspondence
19. On 28 February 2001 the Court's Registry sent to the applicant, who at that time had been detained on remand in the Przemyśl Detention Centre, an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with the Court. The Court's envelope delivered to the applicant bears the stamp: Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie) and a hand‑written note: censo., 21.03.2001 (cenzu. 21.03.01).
20. The envelope from the Chancellery of the Senate of the Republic of Poland of 30 January 2001 bears the same stamp as above and a hand‑written note: censored, 1 [February 20]01 (cenzurowano, 7.02.01) and an illegible signature.
21. The applicant also submitted that his correspondence with his court‑appointed lawyer had been censored by the authorities of the Przemyśl Detention Centre. He provided an envelope addressed to his lawyer which bears the following stamps: the Rzeszów Regional Court (Sąd Okręgowy w Rzeszowie), a hand-written note: censored, 19 [July 20]00 (cenzurowano, 19.07.2000) and an illegible signature. The envelope was posted on 19 July 2000. The second envelope, also addressed to his lawyer, bears the same stamp of the Regional Court, a date: 1.02.2001 and an illegible signature.
The third envelope was addressed to the applicant by his lawyer. The envelope, posted on 26 January 2001, bears the following stamps: the Przemyśl Prison 29.01.2001 (Zakład Karny w Przemyślu), the Rzeszów Regional Court, 1.02.2001, and an illegible signature.
II. RELEVANT DOMESTIC LAW
22. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so‑called “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand.
23. A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgments in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000‑XI, and Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
24. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. Article 102 (11) of the 1997 Code provides that convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. The relevant part of Article 103 § 1 of the Code provides as follows:
“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”
Pursuant to Article 214 § 1,
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison....”
Article 73 of the Code of Criminal Procedure provides that a person detained on remand has a right to communicate freely with his lawyer. A prosecutor may order the control of the detainee's correspondence with his lawyer; however, such measure cannot be maintained longer than 14 days after the detention order has been imposed.
For a more detailed rendition of the relevant domestic law provisions, see the Court's judgments in Michta v. Poland, no. 13425/02, § 33, 4 May 2006 and Kwiek v. Poland, no. 51895/99, § 23, 30 May 2006.
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
25. The Court notes at the outset that the applicant died after the introduction of his application. Subsequently, his sister, Mrs Renata Kozimor, informed the Court that she wished to pursue the application introduced by her brother. She explained that, before his arrest, her brother had lived with her in her apartment, which had been his registered address until his death, and had taken care of her. Therefore, she had suffered frustration and distress caused, in particular, by her brother's three‑year‑long detention on remand.
26. The respondent Government submitted that the applicant's sister cannot be considered a person entitled to pursue the proceedings before the Court on the applicant's behalf and invited the Court to strike the application out of its list of cases.
27. The Court recalls that when an applicant dies during the proceedings, the next‑of‑kin of the applicant has a legitimate interest to justify the continuation of the examination of the case (see, for example, Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997‑II, § 35; Fojcik v. Poland, no. 57670/00, § 46, 21 September 2004; X v. France judgment of 31 March 1992, Series A no. 234-C, p. 89, § 26).
28. The Court thus accepts that the applicant's sister has a legitimate moral interest to pursue the application on her brother's behalf and to obtain a ruling whether, in particular, the length of his detention and alleged censorship of his correspondence had infringed his Convention rights, complaints which he relied on before the Court.
29. Accordingly, the applicant's sister has standing to continue the proceedings before the Court in the applicant's stead, and the Government's preliminary objection should be dismissed.
În primul rând, în aceste speţe se pune problema succesiunii anume în procedura în faţa Curţii, şi nu în faţa instanţei naţionale, care, în aspecte de procedura, inclusiv succesiune procesuală, se conduce de CPC, nu de Convenţie.
În al doilea rând, justificarea Curţii pare a fi bazată nu atât pe necesitatea despăgubirii, ci pe interesul moral al rudelor să obţină o hotărâre CEDO de condamnare... din principiu.
Poate servi drept o motivare și respectiv un temei pentru satisfacerea pretențiilor morale dacă este invocat în instanța națională un așa precedent la CtEDO?