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MAZEPA v. MOLDOVA - 1115/02 [2007] ECHR 382 (10 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/382.html
Cite as:
[2007] ECHR 382
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FOURTH
SECTION
CASE OF
MAZEPA v. MOLDOVA
(Application
no. 1115/02)
JUDGMENT
STRASBOURG
10 May
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 Mazepa 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 K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1115/02) 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 Mrs Nina Mazepa (“the applicant”),
on 2 August 2001.
The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Pârlog.
The
applicant alleged, in particular, that the non-enforcement of the
judgment of 27 May 1999 in her favour had violated her rights
guaranteed by Article 6 of the Convention and Article 1 of Protocol
No. 1 to the Convention, and that the proceedings had been
unreasonably long.
The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). On 1 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 applicant was born in 1953 and lives in Chişinău.
She is a second degree invalid.
The facts of the case, as submitted by the parties, may
be summarised as follows.
1. The original proceedings
The
applicant owns part of a house in which her neighbour (V.) owns
another part. V. re-constructed her part of the house without the
prior agreement of the applicant and the applicant's part of the
house was seriously damaged as a result.
On 11 February 1998 the applicant initiated court
proceedings claiming damages from V. Relying on an expert's
assessment of the damage caused to the applicant's house, on 27 May
1999 the Buiucani District Court awarded her 12,635 Moldovan lei
(MDL) (the equivalent of 1,054 euros (EUR) at the time). No appeal
was made and the judgment became final and enforceable 15 days later.
According to the applicant, she wrote to various State
authorities requesting the enforcement of the award but it was not
enforced. On 10 July 2000 she informed the Buiucani District
Court that the judgment of 27 May 1999 had not been enforced and
asked it to change the manner of enforcing the judgment by
transferring V.'s part of the house to the applicant. She emphasised
that her own part of the house had been severely damaged and that the
damage had been aggravated with the passage of time, causing a real
threat to her life. The applicant relied, inter alia, on
Article 359 of the Code of Civil Procedure (see paragraph 24 below).
On
13 April 2001 the Buiucani District Court accepted the claim. The new
enforcement warrant was submitted to the court on 4 July 2001,
following which the bailiff requested V. to comply with the judgment.
The applicant also requested the Supreme Court of
Justice to transfer the examination of her cases against V.,
including the enforcement of the judgment of 27 May 1999, to another
court in view of the inactivity of the Buiucani District Court. On 7
February 2001 the Supreme Court of Justice rejected that request as
unfounded.
On
7 May 2001 the Buiucani District Court adopted an additional
judgment, awarding the applicant damages (MDL 6,558) against V. for
the late enforcement of the judgment of 27 May 1999. V. appealed. On
12 September 2001 the Chişinău Regional Court quashed
that judgment and ordered a full re-hearing.
On 11 January 2002 the bailiff organised an auction
for the sale of the part of the house belonging to V. but nobody
offered the minimum asking price set. He then proposed that the court
accept the applicant's request to be given title to that part of the
house on account of V.'s debt to her.
On 29 January 2002 the District Court accepted that
request.
In
parallel to all the proceedings mentioned above, the applicant
initiated administrative proceedings for the annulment of a
municipality's decision adopted in 1996 confirming the lawfulness of
V.'s re-construction of the house. On 17 November 1999 the Buiucani
District Court accepted that request and on 5 July 2000 the Chişinău
Regional Court upheld that judgment. On 28 September 2000 the Court
of Appeal quashed the two judgments and adopted a new one, rejecting
the applicant's claims.
2. The re-opened proceedings
V.
lodged a request for the revision of judgments of 27 May 1999 and 29
January 2002 because the expert report on the damage had been signed
by an expert lacking the required training and the District Court had
based its judgment of 27 May 1999 on that report. The report stated
the level of training of its author, who was registered by the
Chamber of Commerce as that of a 1st (highest) degree
expert with 23 years' work experience. On 25 April 2001 the Buiucani
District Court rejected V.'s request.
On
25 April 2002 the Chişinău Regional Court accepted V.'s
request and quashed the judgment of 27 May 1999 and the decision of
13 April 2001 (see paragraphs 8 and 10 above), ordering a full
re-examination of the case in view of the expert's lack of adequate
training. The court accepted V.'s claim that she had only found out
about the expert's lack of training in December 2000 and had thus not
exceeded the three-month time-limit for lodging the revision request.
The applicant informed the Court about the quashing in a letter of 3
March 2003.
On 12 November 2002 the Buiucani District Court
ordered an expert report to be made. On an unspecified date in 2003
the Republican Centre for Research and Regulation of Constructions
(“CERCON”, a State institution) submitted its report to
the court. It confirmed that, following the reconstruction of V.'s
part of the house in serious violation of building regulations, the
applicant's part of the house had suffered a major deterioration and
had become uninhabitable. New cracks appeared in the wall after a
repair, which meant that the process had not yet stabilised. A part
of V.'s house created a particular danger during earthquakes and the
applicant's house had lost all of its resistance to earthquakes.
CERCON assessed the damage caused to the applicant's house at MDL
109,920 (EUR 7,266).
According to a statement by the judge in charge of the
applicant's case regarding the proceedings after the revision of 25
April 2002, the hearings had to be adjourned (by one month on each
occasion) due mainly to the applicant's representative's absence on
the following dates: 1 September 2003 (the first hearing in the
re-opened proceedings), 7 November 2003, 8 December 2003, 17
February 2005, 17 March 2005, 9 June 2005 and 25 August 2005.
Three
more one-month adjournments had to be ordered at V.'s request: on 6
October 2003, 9 December 2004 and 30 January 2006.
On 5 February 2004 the applicant requested a new
expert report to be drawn up in respect of the damage caused to her
part of the house. V. supported this request. On 9 February 2004 the
questions for the experts were formulated and on 20 February 2004 the
court ordered the parties to bear equally the experts' costs. The
expert report was sent to the court by the Republican Institute for
Judicial Expertise and Criminalistics (“IREJC”, a State
institution) on 8 November 2004, following a visit to the applicant's
part of the house on 26 October 2004. The report largely confirmed
the findings of the two previous expert reports and assessed the
damage caused to the applicant's house at MDL 125,174 (EUR 7,784). It
also found that the process of the deformation of the house had not
yet stopped and new cracks had appeared after minor repairs had been
undertaken. On 15 April 2005 the court accepted V.'s objections to
the expert report and ordered a new report to be drawn up by IREJC.
On 13 May 2005 IREJC sent the case file back to the court without
drawing up the report. On 19 May 2005 the experts charged with
drawing up the report were summoned, but they failed to appear on 5
July 2005. On 29 November 2005 V. requested another expert report. On
6 December 2005 the court sent IREJC a request for a new expert
report, but on 19 December 2005 the IREJC returned the case file
since V. had failed to pay IREJC its costs, as ordered by the court.
The applicant stated that she did not want another report since the
previous one had confirmed her position. On 30 January 2006 the court
ordered the parties to each bear IREJC's costs and ordered a new
report to be drawn up. In their observations of September 2006 the
Government informed the Court that IREJC had not yet drawn up its
report and asked for permission to submit it to the Court when it was
ready. No such report has been submitted to date.
The
proceedings are still pending before the Buiucani District Court.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law has been set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 III (extracts)).
In addition, the relevant provisions of the Code of
Civil Procedure, applicable at the relevant time, read as follows:
“Article 5. Examination of civil actions by the
court.
The court shall begin the examination of a civil case:
...
3) at the request of the natural or legal
person who asks for the protection of his or its rights or interests
protected by law; ...
TITLE FIVE
EXECUTION OF COURT JUDGMENTS
Article 336. Court judgments and decisions of other
authorities, which shall be executed.
The following shall be executed in accordance with the
rules in the present Title of this Code:
1) judgments ... adopted by courts in civil
cases: ...
Article 337. Documents of forced execution.
The following are considered documents of forced
execution:
1) execution warrants ... adopted by
courts...;
Article 338. Issuance of an execution warrant.
Execution warrants shall be issued by the court to the
creditor after the decision becomes final...
Execution warrants shall be issued directly to the
creditor or, at his or her request, shall be sent for enforcement
directly by the court to the territorial subdivision of the
Decisions' Enforcement Department within the Ministry of Justice.
Article 343. Submission of the document of forced
execution.
The bailiff shall begin the enforcement of court
judgments at the request of the persons mentioned in Article 5 of the
present Code ...
Article 349. Verification of the execution of the
judgment.
The judge shall verify the correct and timely execution
of the judgment.
Article 359. Measures of forced execution.
The following shall be the measures of forced execution:
1) execution against the debtor's assets
through their freezing and sale; ...”
THE LAW
The
applicant complained that the non-enforcement of the final court
judgment in her favour had violated her rights under Article 6 §
1 and Article 1 of Protocol No. 1 to the Convention. She further
complained about the excessive length of the proceedings.
Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time by a tribunal ....”
Article 1
of Protocol No. 1 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.”
She
also complained about the lack of effective remedies in respect of
her complaints, contrary to Article 13 of the Convention, which
provides:
“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.”
She
further complained under Articles 14 and 17 of the Convention,
without giving details. Article 14 reads as follows:
“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 as follows:
“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.”
I. ADMISSIBILITY OF THE COMPLAINTS
The
Court considers that the applicant's complaints under Articles 14
and 17 are unfounded. She has not provided any details to
substantiate them and there is nothing in the case file which assists
in this connection.
Accordingly,
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' complaints under Articles 6
and 13 of the Convention, as well as under Article 1 of Protocol No.
1, raise questions of fact and law which are sufficiently serious
that their determination should depend on an examination of the
merits. No grounds for declaring them inadmissible have been
established. The Court therefore declares these complaints
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 these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 IN RESPECT OF THE
NON-ENFORCEMENT OF THE FINAL JUDGMENT OF 27 MAY 1999
The
applicant complained about a violation of her rights guaranteed under
the above Articles as a result of the failure to enforce the final
court judgment in her favour.
The Government submitted that the judgment of 27 May
1999 in the applicant's favour had been quashed and the authorities
had taken all reasonable steps to enforce the judgment from the
moment of its adoption. Moreover, no other judgment in the
applicant's favour had become final.
The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 to the Convention if it is sufficiently established to be
enforceable (see Prodan v. Moldova, cited above, § 59).
The applicant had a final judgment in her favour and thus had a
“possession”. It also recalls that the re-opening of
proceedings and the quashing of a final judgment “does not call
into question the final nature of [that judgment]” and does
not, accordingly, relieve the authorities from their responsibility
for failing to enforce during the period when it was still in force
(Popov v. Moldova (no. 1), no. 74153/01, § 55, 18 January
2005). Since no complaint was made in respect of the re-opening of
the proceedings, this issue is not before the Court.
In
the present case, the judgment of 27 May 1999 remained unenforced for
almost three years until 25 April 2002, when it was quashed. The
Court notes the Government's affirmation that the authorities had
attempted to enforce the judgment from the very moment of its
adoption (see paragraph 31 above). Accordingly, the applicant
properly requested the authorities to enforce the judgment. In
addition, on 10 July 2000 the applicant informed the domestic court
of the failure to enforce the judgment and asked for a change in the
method of enforcement (see paragraph 9 above). For an unknown reason,
the domestic court only responded to that request more than nine
months later, on 13 April 2001.
It
follows that the court, which at the relevant time had the function
of supervising the enforcement of its own judgments (see paragraph 24
above), was aware of the failure to enforce the judgment in the
applicant's favour and was obliged to ensure its enforcement.
However, it did not take any action until April 2001, when it ordered
a change in the method of enforcement. A complaint specifically about
the delay in the enforcement lodged with the Supreme Court of Justice
was rejected in February 2001 and did not lead to any immediate
re-activation of the proceedings (see paragraph 14 above).
Moreover,
despite the change in the means of enforcement and the submission of
a new warrant for enforcement on 4 July 2001, it took the authorities
another half a year to make the first serious attempt at enforcing
the judgment by organising the auction of V.'s part of the house in
January 2002.
The
Court considers that the authorities had not taken all reasonable
steps to ensure enforcement, given that the first serious attempt to
do so was made almost two years after the judgment had become final.
The Government have not explained that delay.
In
respect of the applicant's complaint under Article 1 of Protocol
No. 1 to the Convention, the Court recalls that under its
practice “a failure to recover a debt because of the debtor's
indigence cannot be held against the respondent State unless and to
the extent that it is imputable to the domestic authorities”
(see, among other authorities, Poláčik v. Slovakia,
no. 58707/00, § 64, 15 November 2005). However, in the
present case the debtor's indigence was not an issue, since V. had
real estate which could have been used to enforce the judgment.
Indeed, when the bailiff decided to take specific action aimed at
enforcing the judgment he was able to do so (see paragraphs 13 and 14
above). The Government have not explained the authorities' failure to
take such action at an earlier stage.
By
failing to take the necessary steps to have the judgment of 27 May
1999 enforced the national authorities prevented the applicant from
enjoying the successful result of her litigation.
There has accordingly been a breach of Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 (Immobiliare
Saffi v. Italy [GC], no. 22774/93, §§ 59 and 74,
ECHR 1999 V; Popov (1), cited above, §§ 58 and
64 and Istrate v. Moldova, no. 53773/00, §§ 55 and
61, 13 June 2006).
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDUNGS FOLLOWING
THEIR RE-OPENING
The
applicant also complained under Article 6 of the Convention about the
excessive overall length of the proceedings.
The
Government considered that the authorities had acted with sufficient
diligence and that most of the delays in the present case were the
result of the parties' conduct. They referred to the adjournment of
hearings on seven different occasions at the applicant's request (see
paragraph 19 above). In addition, a number of expert reports had had
to be drawn up, which also increased the total length of the
proceedings.
The
Court notes that the proceedings in the present case ended in May
1999 but that the final judgment was not enforced until it was
quashed in April 2002. Since the period of non-enforcement has
already been taken into account when examining the complaints under
Article 6 of the Convention and Article 1 of Protocol No. 1 above,
the Court will examine the period that followed the quashing on 25
April 2002 until present, it being noted that the proceedings are
still pending before the first-instance court. Accordingly, the
period to be taken into consideration is almost five years.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of the relevant authorities and what was at stake for the
applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, § 43,
ECHR 2000-VII and Humen v. Poland [GC], no. 26614/95,
15 October 1999, § 60).
The
Court considers that the case was not particularly difficult to
determine and that a final court judgment had already been adopted on
27 May 1999. The only factor complicating the proceedings, which
was the sole reason for ordering their re-opening in 2002, was the
need to obtain new expert evidence regarding the damage to the
applicant's house. This factor will be taken into account when
examining the parties' conduct.
As regards the applicant's conduct, the Court only
partly shares the Government's view that she had contributed to the
length of the trial. The applicant had requested adjournments of the
proceedings seven times and the total period of adjournments
resulting from her requests amounted to approximately seven months.
Accordingly, the Court will not take into account this seven months
period of delay, nor the three additional months period of delay due
to V.'s requests for adjournment (see paragraph 19 above).
As
regards the conduct of the authorities, the Court notes that five
years following the re-opening of the proceedings the case is still
pending before the first-instance court and that a judgment has yet
to be adopted. It also notes that most of the delay resulted from the
obtaining of three expert reports (see paragraphs 18 and 21 above),
in addition to the one already drawn up during the initial
proceedings.
It
is true that obtaining expert reports which a domestic court
reasonably considers necessary to reach a decision is a factor
explaining in part the length of proceedings. Moreover, the parties
asked for the additional reports to be drawn up. However, the Court
considers that the courts, which have the discretion to reject the
parties' requests for additional reports if these are not considered
necessary, should not allow unreasonably long delays in the
proceedings. The Court recalls that “the
principal responsibility for the delay due to expert opinions
rests ultimately with the State” (see Capuano v. Italy,
judgment of 25 June 1987, Series A no. 119, p. 14, § 32 and
Ciborek v. Poland, no. 52037/99, § 55, 4 November
2003). In this respect, it is also relevant that both the 2003 and
the 2004 reports were drawn up by State institutions and that the
court appears not to have taken any measure to ensure the timely
submission of the reports.
In
particular, the Court notes that there have been unexplained delays
in the proceedings. After the quashing of 25 April 2002 for the sole
reason that it was considered necessary to obtain a more qualified
expert report, the domestic court asked for such a report only on
12 November 2002. No explanation was given for that delay. More
unexplained delays occurred during the process of obtaining the
expert reports, such as the period between 20 February 2004 when the
court's request was sent to the experts, and 26 October 2004, when
the experts visited the house at issue (see paragraph 21 above). The
last expert report was ordered on 30 January 2006 and it appears
not to have been drawn up yet. In addition, experts failed to appear
at a court hearing without any explanation. A lack of diligence in
the experts' conduct is apparent, as is the failure of the court to
take any action in this respect. It is also somewhat surprising that
the court found it necessary to order another expert report after
three previous reports had all concluded in the applicant's favour.
Even though some of the reports may have been invalidated by
procedural mistakes, the Court considers that the repetition of such
mistakes in the course of the same proceedings discloses a serious
deficiency in the system set up by the State for obtaining expert
reports (see, mutatis mutandis, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003 and Pavlyulynets
v. Ukraine, no. 70767/01, § 51, 6
September 2005).
The
Court is, moreover, of the opinion that where proceedings are
re-opened the courts must show particular diligence so as to ensure
that such proceedings are concluded as soon as possible. No such
diligence is apparent in the present case, where the only reason for
the re-opening was the alleged deficiency of an expert report and
where, almost five years later, that specific issue has still not
been remedied notwithstanding the preparation of two new reports.
Finally,
the Court considers that what was at stake for the applicant in the
proceedings in question was of crucial importance to her, taking into
consideration that she was living in a house found to be
uninhabitable since 1999.
Consequently, the Court holds that the applicant's
case was not heard within a reasonable time. There has accordingly
been a violation of Article 6 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 6 § 1 OF THE CONVENTION
The
applicant complained under the Article 13 about the lack of an
effective remedy in respect of her complaint under Article 6 of the
Convention.
The
Government considered that the authorities could not be held
responsible for not enforcing a judgment which had not yet been
adopted, given that the proceedings were still pending before the
first-instance court. The parties were given the possibility of
appealing all procedural decisions they considered necessary.
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It recalls that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
comply with their obligations under this provision (see Chahal v.
the United Kingdom, judgment of 15 November 1996, Reports
1996-V, pp. 1869-70, § 145). The remedy required by
Article 13 must be “effective”, both in practice and in
law. However, such a remedy is required only for complaints that can
be regarded as “arguable” under the Convention (see
Metropolitan Church of Bessarabia and Others v. Moldova, no.
45701/99, § 137, ECHR 2001 XII).
In
the present case, the Court has found a violation of Article 6 §
1 in respect of the non-enforcement of the judgment o 27 May 1999 and
the length of proceedings following their re-opening on 25 April
2002.
The
Court notes that the applicant's complaints regarding both the
non-enforcement of a final judgment and the excessive length of the
proceedings were clearly “arguable” (see paragraphs 38
and 50 above). The Government have not relied on any provision of
domestic law allowing the applicant to take action with a view to
accelerating both the enforcement of the 1999 judgment and the
examination of the proceedings following their re-opening and to
obtain compensation for the delays. Moreover, the applicant asked the
Supreme Court of Justice to have the case transferred to another
court in view of the alleged protraction of the proceedings by the
Buiucani District Court, but to no avail (see paragraph 11 above).
Accordingly,
there has been a violation of Article 13 on account of the lack of a
remedy under domestic law in respect of the right to a hearing of the
case within a reasonable time, guaranteed by Article 6 § 1, as
well as in respect of the timely enforcement of a final court
judgment.
V. 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
applicant claimed EUR 10,000 for pecuniary damage resulting form the
effects of inflation on the award of 27 May 1999. She also claimed
EUR 170,000 for non-pecuniary damage and costs and expenses. She
relied on the expert reports and the National Bank of Moldova's
statement regarding the inflation rates during the relevant periods
of time.
The
Government disagreed, arguing that in the absence of a final court
judgment no enforcement could take place. Accordingly, no damage
could be caused as a result of non-enforcement. In any event, the
applicant had not submitted any evidence to support her claims and
any damage suffered by her was the result of her own actions.
The
Court considers that the applicant must have been caused damage and
suffering as a result of the non-execution of the final judgment of
27 May 1999 for almost three years. In addition she had to live in an
uninhabitable and dangerous house for many years and suffered from
the uncertainty of prolonged court proceedings. In view of the
circumstances of the present case and deciding on an equitable basis
the Court awards the applicant the total sum of EUR 2,900 for
pecuniary and non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed reimbursement of the costs and expenses
incurred before the domestic courts and the Court. She did not
substantiate her claims.
The
Government contested these claims.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see Zimmermann and Steiner v. Switzerland, judgment
of 13 July 1983, Series A no. 66, § 36). In the present
case, regard being had to the information in its possession and the
above criteria, the Court considers it reasonable to award the
applicant, who was not represented by a lawyer, the sum of EUR 100
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 inadmissible the applicant's complaints
under Articles 14 and 17 of the Convention and the remainder of the
application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention as a result of the failure to enforce
the final judgment of 27 May 1999;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention as a result of the failure to
enforce the final judgment of 27 May 1999;
Holds that there has been a violation of Article
6 § 1 of the Convention as a result of the excessive length of
the proceedings following the re-opening of the case;
Holds that there has been a violation of Article
13 of the Convention because of the lack of an effective remedy in
respect of the applicant's complaints regarding the non-enforcement
of the final judgment and the length of proceedings;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,900 (two thousand
nine hundred euros) in respect of pecuniary and non-pecuniary damage
and EUR 100 (one hundred euros) in respect of costs and
expenses, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T. L. Early Nicolas Bratza
Registrar President
