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TIBERNEAC v. MOLDOVA - 18893/04 [2007] ECHR 828 (16 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/828.html
Cite as:
[2007] ECHR 828
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FOURTH
SECTION
CASE OF
TIBERNEAC v. MOLDOVA
(Application
no. 18893/04)
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 Tiberneac 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 S. Pavlovschi,
Mr L.
Garlicki,
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. 18893/04) 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, Mrs Olga Ţiberneac
(“the applicant”), on 27 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, 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 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
15 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 President also decided
to give priority to the case under Rule 41 of the Rules of Court in
view of the applicant's advanced age and poor state of health.
The
applicant and the Government each filed observations on the
admissibility and merits of the case (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant who was born in 1923 and lives in Terebna.
In
1949 the applicant and her parents had been persecuted by the
communist authorities. Their property was confiscated and they were
exiled to Siberia. In 1989 they were rehabilitated.
On
an unspecified date in 2003 the applicant brought an action against
the Edineţ Department of Finances, seeking compensation for the
confiscated property.
On
24 December 2003 the Edineţ District Court ruled in favour of
the applicant and ordered the defendant to pay her 63,885 Moldovan
lei (MDL) (the equivalent of 3,901 euros (EUR) at the time). The
judgment was not appealed against and after fifteen days it became
final and enforceable.
On
23 February 2004 a Bailiff received the enforcement warrant.
The
judgment has not been enforced to date.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law was set out in Prodan v. Moldova,
no. 49806/99, § 31, ECHR 2004 III (extracts).
THE LAW
The
applicant complained that the failure to enforce the final judgment
of 24 December 2003 had violated her rights as guaranteed under
Article 6 § 1 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 to the Convention 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. ADMISSIBILITY OF THE COMPLAINTS
The
Court considers that the applicant's complaints under Article 6
§ 1 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, and no
other 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 AND ARTICLE 1
OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicant maintained that the failure of the authorities to enforce
the judgment of 24 December 2003 had violated Article 6 § 1 of
the Convention.
She
also contended that that non-enforcement had violated her right to
property as guaranteed by Article 1 of Protocol No. 1 to the
Convention.
In
their observations on the admissibility and merits of the case the
Government submitted that the Edineţ
Local Council had taken all reasonable steps to ensure the
enforcement of the judgment in favour of the applicant. Since the
Bailiff had received the enforcement warrant only on 23 February
2004, the judgment could not be enforced in view of the numerous
other judgments in favour of politically repressed persons and the
lack of funds to enforce them.
The
Court recalls that it is not open to a State authority to cite lack
of funds as an excuse for not honouring a final judgment debt.
Admittedly, a delay in the execution of a judgment may be justified
in particular circumstances. But the delay may not be such as to
impair the essence of the right protected under Article 6 § 1 of
the Convention (see Immobiliare Saffi v. Italy [GC], no.
22774/93, § 74, ECHR 1999-V) and the “property”
right which a final judgment debt generates in favour of an applicant
(see Roşca v. Moldova, no. 6267/02, § 31, 22
March 2005). In the instant case, the applicant should not have been
prevented over a period of more than three years from benefiting from
the success of her litigation.
The
issues raised under Article 6 § 1 and Article 1 of Protocol
No. 1 to the Convention are identical to those found to give
rise to violations of those Articles in 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). There is no
reason to depart from those findings in the present case.
There
has, accordingly, been a violation of Article 6 § 1 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. Damage and costs and expenses
In
her initial application, the applicant claimed the payment of
MDL 63,885 representing the award which had not been enforced.
She also claimed EUR 10,000 in compensation for non-pecuniary damage.
The
Court notes that the applicant submitted her observations on the
merits of the case and her just satisfaction claims outside the
time-limit set and that no extension of time was requested by her
lawyer. The Court therefore makes no award.
However,
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
enforced, the Court finds that the applicant is still entitled to
recover the judgment debt awarded in the domestic proceedings (EUR
3,901).
B. 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 3,901 (three thousand
nine hundred and one euros) in respect of pecuniary damage, to be
converted into the 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 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
