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NADULISNEAC ION v. MOLDOVA - 18726/04 [2007] ECHR 823 (16 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/823.html
Cite as:
[2007] ECHR 823
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FOURTH
SECTION
CASE OF NADULISNEAC ION v. MOLDOVA
(Application
no. 18726/04)
JUDGMENT
STRASBOURG
16
October 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 Nadulisneac Ion v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 18726/04) 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 a Moldovan national, Mr Ion Nadulişneac
(“the applicant”), on 8 April 2004.
The
applicant was represented by Mr Victor Marcu, a lawyer practising in
Edineţ. 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
his favour had violated his right to have his civil rights determined
by a court as guaranteed by Article 6 of the Convention and his right
to peaceful enjoyment of his 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
14 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 1953 and lives in Edineţ.
Following
the applicant's unlawful detention for three days and then his
acquittal, on an unspecified date in 2002 he brought an action
against the Edineţ Department of Finances, seeking compensation
for wrongful prosecution.
On
3 December 2002 the Edineţ District Court ruled in favour of the
applicant and ordered the defendant to pay him 11,739 Moldovan lei
(MDL) (the equivalent of 850.04 euros (EUR) at the time). On the same
date the District Court issued an enforcement warrant. The judgment
was not appealed against and after fifteen days it became final and
enforceable.
On
11 June 2003 a Bailiff of the Edineţ District sent the
enforcement warrant to a Bailiff of the Râşcani
District.
In
May 2006, after the case had been communicated to the Government, the
judgment was enforced.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law was set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 III (extracts)) and Popov
v. Moldova (no. 1) (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 belated enforcement of the final
judgment in his favour had violated his 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
(no. 1), 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 final judgment
in his favour had violated his 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 3 December 2002
within a reasonable time 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, in substance, compensation
for the impossibility of using his money for
forty-one months.
The
Government did not submit any comments under this head.
The
Court considers that the applicant must have suffered pecuniary
damage because of his inability to use the money as a result of the
belated enforcement of the judgment of 3 December 2002. Taking into
account the line of approach in the case of Prodan v.
Moldova (cited above, § 73) and the domestic
legislation concerning the calculation of default interest (see
paragraph 12 above), the Court awards the applicant EUR 504,
representing the loss of profit suffered as a result of
the failure of the authorities to enforce the judgment in favour of
the applicant within a reasonable time.
B. Non-pecuniary damage
26. The
applicant also claimed EUR 3,000 in respect of non-pecuniary damage
suffered as a result of the failure of the authorities to enforce the
judgment.
The
Government disagreed with 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
of the judgment. It awards the applicant the total sum of EUR 1,400
in respect of non-pecuniary damage.
C. Costs and expenses
The
applicant did not submit any claims in respect of costs and expenses.
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
504 (five hundred and four euros) in respect of pecuniary damage and
EUR 1,400 (one thousand four hundred euros) in respect of
non-pecuniary damage, 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 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
