(Applications nos. 476/07, 22539/05, 17911/08 and 13136/07)
28 July 2009
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 Olaru and Others v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 7 July 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Application no. 476/07 by Vasile OLARU
B. Application no. 17911/08 by Artur, Corina and Olivia LUNGU v. Moldova
C. Application no. 22539/05 by Vera GUSAN
D. Application no.13136/07 by Simion RACU
II. RELEVANT NON-CONVENTION MATERIAL
A. Domestic law and practice
“Section 12. Financial decentralisation
(1) The public local authorities enjoy, within the limits of the law, financial autonomy. They shall adopt their own budgets which shall be independent and separate from the budget of the State.
Section 13. The property of the territorial-administrative units
(1) The public local authorities shall have their own distinct patrimony, which shall include movable and immovable goods. They shall dispose freely of it under the conditions provided for by law.
(2) The patrimony of the territorial-administrative units shall be delimited and separated from that of the State, according to the law.
(3) The delimitation presupposes ... exclusive decisional competence of the territorial-administrative units in respect of the administration of the patrimony...”
“Section 35. Housing for police officers
Police officers must be provided with housing by the local administrative authorities after three years of employment...”
“Section 30. Housing for judges
(1) If a judge has no accommodation or if he needs an improvement to be made to his accommodation, or if he has not been provided with the supplementary fifteen square metres, the local administrative authority is obliged to provide the judge with housing within six months from the moment when the above circumstances arise ...
(2) After ten years of service the accommodation provided to a judge shall be transferred into his ownership.”
“Section 12. Restitution of property to persons who were subjects of repression
Any citizen of the Republic of Moldova who has been the subject of political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way.
The persons who have to be evicted from the houses restored to their owners shall be provided with accommodation by the local administration authorities ... at the time of eviction, in accordance with the legislation in force.”
1. The families of citizens forced to leave their houses in the eastern region of Moldova [Transdniestria] as a result of the military actions for the safeguarding of the independence and integrity of Moldova or as a result of their political activity directed against separatism... shall be provided with housing in accordance with the housing legislation in force.
“Section 38. Housing
(1) If a prosecutor has no accommodation or if he needs an improvement in his accommodation, the local administrative authority shall be obliged to provide him or her with housing within one year of the date of his or her appointment ...”
B. Materials of the Council of Europe
“Article 9 – Financial resources of local authorities
Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.”
“As regards the legal and regulatory framework preventing non-execution:
ensuring a coherent legal framework and/or coherent practices for the control and restitution of property respecting the requirements of the Convention;
improving budgetary planning, notably by ensuring the compatibility between the budgetary laws and the State's payment obligations;
proper control over the use of the budgetary funds by the authorities responsible for payments;
providing for specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations;
setting up, where appropriate, a special fund or special reserve budgetary lines, to ensure timely compliance with judicial decisions, with a subsequent possibility of recovering from the debtor the relevant sums together with default interest;
ensuring the individuals' effective access to execution proceedings by clearly identifying the authority responsible for execution and simplifying the requirements to be fulfilled by the execution documents;
As regards domestic remedies in case of non-execution:
introducing, either in budgetary laws and in other laws, a general obligation to automatically compensate for delays in execution of judicial decisions through appropriate default interest at a reasonable rate (e.g. in line with the Central Bank's marginal lending rate);
ensuring effective civil liability of the State for damages arising from the non-execution of domestic judicial decisions, which are not compensated by the default interest and providing, in appropriate cases, for the possibility of recovering awards made from the state agents responsible;
guaranteeing the existence of effective procedures capable of accelerating the execution process leading to full compliance with the judicial decision;
providing for increased recourse to money penalties, where appropriate, the automatic increase of those money penalties as the authority concerned continues to delay execution;
improving the personal responsibility of state agents in case of deliberate non-execution through efficient penalties or fines;
further developing central procedures for the freezing of accounts held by debtor authorities in order to secure the honouring of payment obligations, including the possibility of freezing also the accounts of authorities subordinate to the debtor's authority;
setting up or improving procedures and regulations allowing the seizure of state assets which are manifestly not necessary for the fulfilment of the missions of the authorities concerned and, where appropriate, drawing up necessary inventories;
providing the bailiffs with sufficient means and powers so as to allow them to properly ensure, where appropriate, the enforcement of judicial decisions;
strengthening the individual responsibility (disciplinary, administrative and criminal where appropriate) of decision makers in case of abusive non-execution and providing the responsible state authorities with the necessary powers to that effect...”
“Remedies following a “pilot” judgment
13. When a judgment which points to structural or general deficiencies in national law or practice (“pilot case”) has been delivered and a large number of applications to the Court concerning the same problem (“repetitive cases”) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.
14. The introduction of such a domestic remedy could also significantly reduce the Court's workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. The existence of a remedy aimed at providing redress at national level for this category of people might allow the Court to invite them to have recourse to the new remedy and, if appropriate, declare their applications inadmissible.
15. Several options with this objective are possible, depending, among other things, on the nature of the structural problem in question and on whether the person affected by this problem has applied to the Court or not.
16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation.
17. Within the framework of this case-by-case examination, states might envisage, if this is deemed advisable, the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention, with a view to saving the Court from dealing with these cases and where appropriate to providing speedier redress for the person concerned. The criteria laid out in Recommendation Rec(2000)2 of the Committee of Ministers might serve as a source of inspiration in this regard.
18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases.
19. However, it would not be necessary or appropriate to create new remedies, or give existing remedies a certain retroactive effect, following every case in which a Court judgment has identified a structural problem. In certain circumstances, it may be preferable to leave the cases to the examination of the Court, particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies, which, moreover, would not be in place until the adoption of legislative changes.”
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”
Article 1 of Protocol No. 1
“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...”
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
I. ADMISSIBILITY OF THE CASES
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
A. The submissions of the parties
B. The Court's assessment
1. General principles
51. Another important aim of the pilot judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court's task, as defined by Article 19, that is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in large series of cases (see, mutatis mutandis, E.G. v. Poland (dec.), no. 50425/99, § 27, ECHR 2008–..(extracts)). The object of the pilot judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007 XIV (extracts)). While the respondent State's action should primarily aim at the resolution of such a dysfunction and at the introduction where appropriate of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers of redress in line with the Convention requirements. The Court may decide to adjourn examination of all similar cases, thus giving the respondent State an opportunity to settle them in such various ways (see, mutatis mutandis, Broniowski, cited above, § 198, and Xenides-Arestis v. Turkey, no. 46347/99, § 50, 22 December 2005).
2. Application of the principles to the present case
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question in whole;
(b) invites the Government and the applicants to submit, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 28 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza