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MARCU v. MOLDOVA - 17359/04 [2007] ECHR 830 (16 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/830.html
Cite as:
[2007] ECHR 830
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FOURTH
SECTION
CASE OF MARCU v. MOLDOVA
(Application
no. 17359/04)
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 Marcu 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. 17359/04) 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 Mihail Marcu (“the
applicant”), on 24 March 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 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
13 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 was born in 1920 and lives in Edineţ.
In
1949 the applicant was persecuted by the communist authorities. His
property was confiscated and he was exiled to Siberia for fifteen
years.
In
1989 he was rehabilitated.
On
an unspecified date in 2003 he brought an action against the Edineţ
Department of Finances, seeking compensation for the confiscation of
his property.
On
25 September 2003 the Edineţ District Court ruled in favour of
the applicant and ordered the defendant to pay him 80,000 Moldovan
lei (MDL) (the equivalent of 5,198 euros (EUR) at the time). The
judgment was not appealed against and after fifteen days it became
final and enforceable.
On
27 October 2003 a Bailiff received the enforcement warrant.
On
28 January 2005 the Bailiff sent the enforcement warrant to the
President of Edineţ County, without having enforced it.
The
judgment of 25 September 2003 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 III (extracts).
THE LAW
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.
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), no. 74153/01,
§ 32, 18 January 2005). 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 the 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
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 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 25 September 2003
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. Damage and costs and expenses
The
applicant claimed EUR 10,000 for non-pecuniary damage suffered
as a result of the non-enforcement of the final judgment in his
favour. He argued that the failure to enforce the final judgment for
a long period of time had caused him stress and anxiety. He did not
submit any claim in respect of pecuniary damage or costs and
expenses.
The
Government disagreed with the amount claimed by the applicant and
argued that the finding of a violation would constitute sufficient
just satisfaction.
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 5,198).
The
Court also takes the view that the applicant has suffered some
non-pecuniary damage as a result of the violations found which cannot
be made good by the Court's mere finding of a violation. The
particular amount claimed is, however, excessive. Making its
assessment on an equitable basis the Court awards the applicant
EUR 1,600.
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 5,198 (five thousand one hundred and ninety-eight
euros) in respect of pecuniary damage and EUR 1,600 (one thousand six
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
