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BULAVA v. MOLDOVA - 27883/04 [2008] ECHR 13 (8 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/13.html
Cite as:
[2008] ECHR 13
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FOURTH
SECTION
CASE OF BULAVA v. MOLDOVA
(Application
no. 27883/04)
JUDGMENT
STRASBOURG
8 January
2008
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 Bulava v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Stanislav Pavlovschi,
Lech
Garlicki,
Ljiljana
Mijović,
Ján
Šikuta,
Päivi
Hirvelä, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27883/04) 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 two Moldovan nationals, Mrs Elena Bulava and
Mr Nicolai Bulava (“the applicants”), on 18 June
2004.
The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr Vitalie Pârlog.
The
applicants complained that the belated compliance by a State-owned
company with final judgments in their favour had violated their right
to have their civil rights determined by a court, as guaranteed by
Article 6 of the Convention, and their right to the peaceful
enjoyment of their 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
29 March 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
applicants 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
applicants, Mrs Elena Bulava and Mr Nicolai Bulava, a married couple,
were born in 1957 and 1954, respectively, and live in Soroca.
They
were employees of a State-owned water-supply company (“the
company”). Between 2000 and 2004 the company was at a
standstill on several occasions and the applicants were not paid
their salaries. They brought several actions against the company for
the payment of their salaries.
A. Mrs Bulava's actions
By
final judgments of 26 March and 29 September 2003 the Soroca District
Court ordered the company to pay Mrs Bulava 1,820 Moldovan lei (MDL)
(approximately 118.86 euros (EUR) at the time).
By
a final judgment of 22 March 2004 the Soroca District Court found
that the company's failure to comply with the judgments of 26 March
and 29 September 2003 in favour of the applicant violated her rights
and ordered the company to pay the applicant MDL 8,981 (approximately
EUR 576.75 at the time), which represented a penalty of 5% of
MDL 1,820 for each day of default and MDL 1,820 for
non-pecuniary damage. A bailiff received the enforcement warrant on
18 May 2004.
By
a final judgment of 29 March 2004 the Soroca District Court ordered
the company to pay her MDL 2,452 (approximately EUR 161.5 at the
time). A bailiff received the enforcement warrant on 20 April 2004.
By
a final judgment of 15 July 2004 the Soroca District Court ordered
the company to pay the applicant MDL 5,460 (approximately EUR 369.2
at the time). A bailiff received the warrant of execution on
10 August 2004.
By
a final judgment of 13 September 2004 the Soroca District Court
ordered the company to pay the applicant MDL 13,286 (approximately
EUR 897.38 at the time). A bailiff received the warrant of
execution on 13 October 2004.
B. Mr Bulava's actions
By
a final judgment of 10 July 2003 the Soroca District Court ordered
the company to pay Mr Bulava MDL 10,938.50 (approximately EUR 682.25
at the time). A bailiff received the warrant of execution on
3 February 2004.
By
a final judgment of 26 April 2004 the Soroca District Court ordered
the company to pay him MDL 4,360 (approximately EUR 306.83 at the
time). A bailiff received the warrant of execution on 11 May 2004.
By
a final judgment of 13 September 2004 the Soroca District Court
ordered the company to pay the applicant MDL 13,375 (approximately
EUR 903.39 at the time). A bailiff received the warrant of
execution on 5 October 2004.
C. Enforcement proceedings
By
a letter of 27 December 2004 a bailiff informed the applicants, inter
alia, that the assets of the company which had been seized by the
bailiff remained unsold after auction. The applicants were also
informed by the bailiff that the judgments would be enforced as soon
as the company had assets.
On
12 May 2005 the applicants informed the Court that all the judgments
in their favour had been enforced on 29 April 2005.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law was set out in Prodan v. Moldova,
no. 49806/99, § 31, ECHR 2004 III (extracts).
The
relevant parts of the Civil Code of 12 June 2003 read as follows:
Article 619. Default interest
“(1) Default interest is payable for
delays in the discharge of pecuniary obligations. Default interest
shall be 5% above the interest rate provided for in Article 585 [the
National Bank of Moldova 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 not be admissible.”
Article
256 of the Code of Civil Procedure of 12 June 2003 reads as follows:
“Judgments and court orders shall be immediately
enforceable if they require the defendant:
... (2) to pay [a] salary or other amounts
which arise from labour relations ..., in the amount of an average
salary;
In
addition, the Labour Code of 29 July 2003 states:
Article 330. Obligation of the employer to
compensate for damage suffered as a result of unlawful dismissal
“...(3) In the event of a delay in the
payment of salary by the employer ..., the employee shall be paid 0.1
per cent in addition to the amount due for each day of delay.”
THE LAW
The
applicants complained that the belated compliance with the final
judgments in their favour had violated their rights under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. Victim status
In
their observations on the admissibility and merits of the case, the
Government submitted that the final judgments in favour of the
applicants had been fully enforced on 29 April 2005. Accordingly, the
applicants had lost their “victim” status.
The
applicants submitted that the final judgments in their favour had
been complied with only after an unreasonable delay. They argued that
the national authorities had neither acknowledged the breach of the
Convention nor paid them any compensation for the late compliance
with the judgments.
The
Court reiterates that a decision or measure favourable to an
applicant is not, in principle, sufficient to deprive the individual
of his or her status as “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention (see Amuur
v. France, judgment of 25 June 1996,
Reports of Judgments and Decisions
1996-III, p. 846, § 36, and Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999 VI).
In
the present case, the Court considers that, while the relevant
judgments have now been enforced, the Government have neither
acknowledged, nor afforded adequate redress for, the delay in
compliance. In such circumstances, the applicants can continue to
claim to be “victims” of a
violation of their Convention rights resulting from the lengthy
failure to comply with the final judgments in their favour (see
Dumbrăveanu v. Moldova, no. 20940/03, § 22, 24
May 2005).
B. Exhaustion of domestic remedies
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 applicants could have brought an
action against the bailiff under Article 20 of the Constitution and
under Article 619 of the Code of Civil Procedure (“the
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 applicants an effective remedy. It has
dealt with a similar objection in 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 and does not
consider it necessary to depart from its conclusion reached in that
case.
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
Koltsov v. Russia, no. 41304/02, § 16, 24 February 2005;
Petrushko v. Russia, no. 36494/02, § 18, 24 February
2005; and Metaxas v. Greece, no. 8415/02, § 19, 27
May 2004). It therefore concludes that the arrangement for making
payment should have been put in place immediately after the judgments
became final.
C. Conclusion on admissibility
The
Court therefore considers that the applicants' complaints 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
The
Government submitted that in view of the enforcement of the judgments
in favour of the applicants, there had been no violation of Article 6
§ 1 and Article 1 of Protocol No. 1 to the Convention.
The
Court has repeatedly held that proceedings concerning reinstatement
are of “crucial importance” to plaintiffs and that, as
such, they must be dealt with “expeditiously” (see
Guzicka v. Poland, no. 55383/00, § 30, 13 July
2004); this requirement is reinforced in States where domestic law
itself provides that all such cases must be resolved with particular
urgency (see Borgese v. Italy, judgment of 26 February 1992,
Series A no. 228 B, § 18). This is particularly so
when a judgment has already been adopted and the authorities have
only to comply with it. The Court notes that the particular hardship
to which employees are undoubtedly subjected when they are unlawfully
deprived of their salary, even for a short period, has been taken
into account by the domestic legislator in Article 256 of the CCP
(see paragraph 20 above), which makes court orders for reinstatement
and the payment of part of the salary immediately enforceable (see
Ungureanu v. Moldova, no. 27568/02, § 26, 6 September
2007).
It
is to be noted that the final judgments in respect of Mrs Bulava were
issued on 26 March and 29 September 2003, 22 March 2004, 29 March
2004, 15 July 2004 and 13 September 2004. In so far as those
judgments were fully enforced on 29 April 2005, the periods of
non-compliance were twenty-five months and three days, nineteen
months, thirteen months and seven days, thirteen months, nine months
and fourteen days and seven months and sixteen days, respectively.
It
is to be noted that the final judgments in respect of Mr Bulava were
issued on 10 July 2003, 26 April 2004 and 13 September 2004. The
periods of non-compliance were therefore twenty-one months and
nineteen days, twelve months and three days and seven months and
sixteen days, respectively.
The
Court has found violations of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention in numerous cases
concerning delays in complying with final judgments (see, among other
authorities, Prodan v. Moldova and Lupacescu and Others v.
Moldova, cited above).
Accordingly,
the Court finds, for the reasons given in those cases, that the
failure to comply with the final judgments in favour of the
applicants within a reasonable time constitutes 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. Pecuniary damage
Mrs
Bulava claimed MDL 271,529.42 (EUR 16,033) and Mr
Bulava claimed MDL 179,426.31 (EUR 10,594.56) in compensation
for pecuniary damage suffered as a result of the delays in complying
with the judgments in their favour.
The
Government argued that the amounts claimed by the applicants were
excessive. Relying on Article 330 of the Labour Code (see paragraph
21 above) the Government asserted that Mrs Bulava should
receive MDL 3,500.64 (EUR 200) and Mr
Bulava MDL 3,628.80 (EUR 208) in respect
of pecuniary damage.
The Court considers that the applicants must have suffered pecuniary
damage because of their inability to use their money as a result of
the delays in payment of the sums due to them under the judgments in
their favour. Taking into account the line of approach in Prodan
(cited above, § 73), and the domestic legislation
concerning the calculation of default interest (see paragraph 19
above), the Court awards Mrs Bulava
EUR 440 and Mr Bulava EUR 457 for the pecuniary
damage suffered as a result of the authorities' failure to comply
with the judgments in their favour within a reasonable time.
B. Non-pecuniary damage
42. The
applicants claimed compensation for non-pecuniary damage
suffered as a result of the violation of their rights, without
specifying the amount sought.
The
Government argued that the applicants had not adduced any evidence of
stress or anxiety.
The Court takes the view that the applicants must have
been caused a certain amount of stress and frustration as a result of
the delays in payment, which cannot be made good by the mere finding
of a violation (see Dumbrăveanu,
cited above, § 48). Making its assessment on an equitable
basis, it awards Mrs Bulava EUR 1,000 and Mr
Bulava EUR 800 in compensation for non-pecuniary damage.
C. Costs and expenses
The
applicants did not claim any costs and expenses
for the Convention proceedings.
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, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention:
–
to Mrs Elena Bulava – EUR 440 (four hundred and
forty euros) for pecuniary damage and EUR 1,000 (one thousand euros)
for non-pecuniary damage;
–
to Mr Nicolai Bulava – EUR 457 (four hundred and
fifty-seven euros) for pecuniary damage and EUR 800 (eight hundred
euros) for non-pecuniary damage;
(b)
that the above amounts shall 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;
(c) 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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
