European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3108/02
by Valentina NENAŞEVA and Others
against Moldova
lodged on 28 December 2001

The European Court of Human Rights (Fourth Section), sitting on 2 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 28 December 2001,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Valentina Nenaşeva, Ms Galina Vier, Ms Tatyana Zimovna and Ms Valentina Maler, are Moldovan nationals, who live in Chişinău. They were represented before the Court by Mr Ştefan Urîtu from the “Helsinki Committee for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants were all employees of a private company (“the company”). On different dates in 1998 they were dismissed.

Since the company had failed to pay them their salaries for the last six months of their employment, in August 1998 the applicants lodged with the Botanica District Court an action against their former employer, seeking payment of their salary arrears.

The Botanica District Court found in favour of the applicants and by judgments of 16 October 1998, 28 September and 8 October 1999 ordered the company to pay them the following amounts: 5,290 Moldovan lei (MDL) (the equivalent of 926 euros (EUR) at the time) to Ms Maler; MDL 5,893 (EUR 514) to Ms Nenaşeva; MDL 5,025 (EUR 429) to Ms Vier and MDL 6,143 (EUR 524) to Ms Zimovna. No appeals were lodged and the judgments became final 15 days later.

The applicants obtained enforcement warrants which were sent to a bailiff on 11 and 30 November 1999. Because the bailiff did not enforce the warrants, the applicants sent numerous complaints to various authorities asking for the judgments to be enforced.

On 28 May 2001 a bailiff issued a decision and discontinued the enforcement proceedings on the ground that the company had been insolvent and handed over the enforcement warrants to the applicants. The applicants did not lodge an appeal against this decision, nor did they repeatedly submit the enforcement warrants to the Bailiff’s Office for enforcement.

The judgments in favour of the applicants have not been enforced to date.

B.  Relevant domestic law

The relevant provisions of domestic law have been set out in this Court’s judgment in the case of Prodan v. Moldova (no. 49806/99, ECHR 2004 III (extracts), § 31).

Article 426 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, reads as follows:

“The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings. (...)”

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the State’s failure to enforce the final judgments in their favour.

They also complained under Article 13 that they had not had at their disposal effective domestic remedies to ensure the enforcement of the judgments in their favour.

THE LAW

The applicants complained that the bailiff had not taken effective measures to enforce the judgments in their favour and therefore their rights under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention had been infringed.

Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“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.”

The applicants also complained about a lack of effective remedies in respect of their complaints, contrary to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints which have been submitted within six months from the date of the “final” domestic decision. The Court observes that the applicants’ litigation with the company ended with the final judgments of the Botanica District Court of 16 October 1998, 28 September and 8 October 1999. The enforcement proceedings arising from those judgments were discontinued by a bailiff’s decision of 28 May 2001. It is true 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). However, as the debtor in the present case had been a private company and not a State body, the applicants were obliged to avail themselves of Article 426 of the Code of Civil Procedure (see the “Relevant Domestic Law” part above). It is to be noted that the bailiff’s decision of 28 May 2001 was not appealed against and, therefore, became final (see Sitkov v. Russia (dec.), no. 55531/00, 9 November 2004).

The Court notes that the present application was lodged on 28 December 2001, that is more than six months after the final domestic decision had been taken.

Therefore it concludes that the complaints were submitted out of time and should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President