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MIZERNAIA v. MOLDOVA - 31790/03 [2007] ECHR 745 (25 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/745.html
Cite as:
[2007] ECHR 745
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FOURTH
SECTION
CASE OF MIZERNAIA v. MOLDOVA
(Application
no. 31790/03)
JUDGMENT
STRASBOURG
25
September 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 Mizernaia 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 Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 4 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31790/03) 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 Mizernaia (“the applicant”),
on 25 July 2003.
The
applicant was represented by Mr Vitalie Iordachi, a lawyer practising
in Chişinău and member of the non-governmental organisation
“Lawyers for Human Rights”. The Moldovan Government (“the
Government”) were represented by their Agent at the time,
Mr Vitalie Pârlog.
The
applicant complained that the failure to enforce a final judgment in
her favour violated her right to have her civil rights determined by
a court as guaranteed by Article 6 § 1 of the Convention and her
right to peaceful enjoyment of her possessions as guaranteed by
Article 1 of Protocol No. 1 to the Convention.
The
application was allocated to the Fourth Section of the Court. On
9 February 2006 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
The
applicant and the Government each filed observations on
admissibility, merits and just satisfaction.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Chişinău.
After
having been excluded in 1994 from a State-run apartment building
association, the applicant brought an action against it, seeking the
restitution of the money she had invested in a three-roomed
apartment.
On
29 April 1996 the Râşcani District
Court ruled in favour of the applicant and ordered the building
association to pay her 23,733.80 Moldovan lei (MDL) (the
equivalent of 4,550 euros (EUR) at the time).
The
building association appealed unsuccessfully against the judgment on
two occasions and, by a final judgment of 4 November 1997, the Court
of Appeal upheld the judgment of 29 April 1996.
In
December 1997 and May 1998 the applicant received MDL 3,071.10
and MDL 1,970, respectively.
Following
several complaints about non-enforcement of the judgment lodged by
the applicant with the Ministry of Justice, on 5 September 2000
and on 19 January 2001 the Ministry of Justice requested the Bailiff
to take all the necessary steps to enforce the judgment.
The
final judgment of 4 November 1997 has not been enforced to date.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law was set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 ... (extracts)) and Popov
v. Moldova (no. 74153/01, §§ 29-41, 18
January 2005).
The
Civil Code of 12 June 2003 reads as follows:
Article 619. Default interest
“(1) Default interest is payable for
delayed execution of pecuniary obligations. Default interest shall be
5% above the interest rate provided for in Article 585 [NBM
refinancing interest rate] unless the law or the contract provides
otherwise. Proof that less damage has been incurred shall be
admissible.
(2) In non consumer-related situations
default interest shall be 9% above the interest rate provided for in
Article 585 unless the law or the contract provides otherwise. Proof
that less damage has been incurred shall be inadmissible.”
THE LAW
The
applicant complained that the non-enforcement of the final judgment
in her favour had violated her rights under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
Article
6 § 1 of the Convention, insofar 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.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
In
their observations on the admissibility and merits of the case, the
Government submitted that available domestic remedies had not been
exhausted. They argued that the applicant could have brought an
action against the Bailiff under Article 20 of the Constitution and
under Article 426 of the former Code of Civil Procedure (“the
former CCP”).
The
Court notes that it has already dismissed a similar objection raised
by the respondent Government in respect of Article 426 of the former
CCP because “even assuming that the applicant could have
brought an action against the Bailiff and obtained a decision
confirming that the non-execution had been unlawful in domestic law,
such an action would not have achieved anything new, the only outcome
being the issue of another warrant enabling the Bailiff to proceed
with the execution of the judgment” (see Popov v. Moldova,
cited above, § 32). The Court does not see any reason to depart
from that conclusion in the present case.
For
the same reasons, the Court considers that Article 20 of the
Constitution, which provides for a general right of access to
justice, did not offer the applicant an effective remedy. While the
decision of the Plenary Supreme Court of Justice of 19 June 2000
“concerning the application in judicial practice by the courts
of certain provisions of the European Convention for the Protection
of Human Rights and Fundamental Freedoms” may have allowed the
applicant to rely on the Convention directly before the domestic
courts, such reliance would have resulted in nothing more than
“another warrant enabling the Bailiff to proceed with the
execution of the judgment” (see Lupacescu and Others v.
Moldova, nos. 3417/02, 5994/02, 28365/02, 5742/03, 8693/03,
31976/03, 13681/03, and 32759/03, § 17, 21 March 2006).
In
any event, the Court reiterates that a person who has obtained an
enforceable judgment against the State as a result of successful
litigation cannot be required to resort to enforcement proceedings in
order to have it executed (see Metaxas v. Greece, no. 8415/02,
§ 19, 27 May 2004).
The
Court considers that the applicant's complaints under Article 6
§ 1 of the Convention and under Article 1 of Protocol No. 1
to the Convention raise questions of law which are sufficiently
serious that their determination should depend on an examination of
the merits, no other grounds for declaring them inadmissible having
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 VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicant complained that the non-enforcement of the judgment in her
favour had violated her rights under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
The
issues raised under these Articles are identical to those found to
give rise to violations of those Articles in the judgments in the
cases of Prodan v. Moldova (cited above, §§ 56 and
62) and Sîrbu and Others v. Moldova (nos. 73562/01,
73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, §§ 27
and 33, 15 June 2004).
Accordingly,
the Court finds, for the reasons detailed in those judgments, that
the failure to enforce the final judgment of 4 November 1997
constitutes a violation of Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
III. 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. Pecuniary damage
The applicant claimed MDL 36,771.28 (EUR
2,161.7) in respect of pecuniary damage, representing the loss of
profit suffered as a result of the failure of the authorities to
enforce in full the judgment in her favour.
The
Government considered the amount claimed by the applicant excessive
and contested the method of calculation.
In
view of its finding that the authorities have not taken the necessary
steps to ensure the enforcement of the judgment in the applicant's
favour and given that the judgment has still not been fully enforced
(see paragraph 10 above), the Court finds that the applicant is still
entitled to recover the judgment debt awarded in the domestic
proceedings (EUR 1,927).
The Court also considers that the applicant must have suffered
pecuniary damage as a result of the non-enforcement of the judgment
of 4 November 1997. Taking into account the line of approach in
the above-cited Prodan, § 73, and the domestic
legislation concerning the calculation of default interest (see
paragraph 14 above), the Court awards the applicant EUR 2,060,
representing the loss of profit suffered as a result of
the failure of the authorities to fully enforce the judgment in her
favour.
The
total amount of pecuniary damage awarded by the Court is EUR 3,987.
B. Non-pecuniary damage
30. The
applicant also claimed EUR 10,000 in respect of non-pecuniary damage
suffered as a result of the failure of the authorities to enforce the
judgment.
The
Government disputed the amount claimed by the applicant, arguing that
it was excessive in light of the case-law of the Court. They stated
that in some cases the mere fact of finding a violation was
considered to be sufficient just satisfaction.
The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the non-enforcement
in full of the judgment, particularly given the rather long period
during which the judgment has not been fully enforced. It awards the
applicant the total sum of EUR 2,000 in respect of non-pecuniary
damage.
C. Costs and expenses
The
applicant also claimed EUR 700 for costs and
expenses.
The
Government disputed the amount claimed, stating that the applicant
had failed to prove her alleged representation expenses.
The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred and are reasonable as to quantum
(see, for example, Amihalachioaie v. Moldova, no. 60115/00, §
47, ECHR 2004 ...).
In
the present case, regard being had to the itemised list submitted by
the applicant, the above criteria and the complexity of the case, the
Court awards the applicant the entire amount claimed.
D. 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 the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
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
3,987 (three thousand nine hundred and eighty-seven euros) in respect
of pecuniary damage, EUR 2,000 (two thousand euros) in respect
of non-pecuniary damage and EUR 700 (seven hundred euros) for 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 amounts 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 25 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
