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FLAVIU AND DALIA SERBAN v. ROMANIA - 36446/04 [2010] ECHR 1276 (14 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1276.html
Cite as:
[2010] ECHR 1276
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THIRD
SECTION
CASE OF FLAVIU AND DALIA ŞERBAN
v. ROMANIA
(Application
no. 36446/04)
JUDGMENT
STRASBOURG
14
September 2010
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 Flaviu and Dalia Şerban
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36446/04) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Romanian nationals, Mr Flaviu Şerban
and Ms Dalia Şerban (“the
applicants”), on 21 September 2004.
The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu.
On
23 April 2008 the President of the Third Section decided to
give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, husband and wife, were born in 1966 and 1969 respectively
and live in Braşov.
On
17 March 2000 the applicants lent 4,000 United States dollars to E.I.
and G.I., at a 6,000,000 old Romanian lei (ROL) monthly interest. The
deadline for returning the loan was 30 August 2000. Following refusal
of payment by the third parties, the applicants brought court
proceedings.
On
6 February 2001 the Baia de Aramă
District Court (“the District Court”), by a final
decision, ordered E.I. and G.I. to return the loan, calculated at the
date of payment, and to pay the applicants ROL 42,000,000
representing interest until 17 December 2000, as well as interest
until effective repayment. It also ordered G.I. to pay the applicants
ROL 8,150,000 for the costs of proceedings.
A. Attempts by the bailiff I.M. to enforce the judgment
On
29 May 2001 the applicants requested the bailiff I.M. to enforce the
judgment. On the same day the District Court upheld the enforcement.
On
5 June 2001 the bailiff ordered E.I. to pay his part of the debt.
On
13 June 2001 the bailiff certified in an official record that G.I.
had no movable or immovable assets to be seized. At an unknown date
in the summer of 2001, G.I. left the country.
On
8 August 2001 the bailiff seized a bus belonging to E.I. He then
scheduled the sale for 13 March 2002. However, in the absence of any
potential buyer, the bailiff adjourned the sale for 20 March 2002.
On
26 November 2001 the applicants requested the bailiff to seize an
apartment belonging to E.I. On 29 January 2002 the bailiff seized
that apartment.
On
8 February 2002 the applicants requested replacement of the bailiff,
alleging failure to enforce the judgment. However, on 11 February
2002 the District Court refused replacement. The applicants filed
further complaints against the bailiff before the Bailiffs' Chamber,
but received no answer.
The
bailiff scheduled the sale of the apartment for 13 May 2002. However,
in the absence of any potential buyer, the bailiff decided to
postpone it until a new request by the applicants. On 23 July 2002
the applicants requested the bailiff to put the apartment on sale.
On
11 June 2002 the District Court dismissed an objection to execution
by E.I.
On
10 September 2002 the bailiff requested an expert to evaluate the
apartment. The expert report was finalized on 29 November 2002.
The
sale of the apartment was scheduled for 6 January and then for
7 February 2003, when the applicants bought it. On 18 February
2003 the bailiff certified in an official record that the applicants
became the new owners and that they had paid an amount of ROL
100,000,000 for that apartment, which was to be deducted out of the
total debt. However, due to a mortgage held by a bank as a security
for a loan of money, the apartment was later sold (see paragraph 29
below).
On
10 March 2003 the bailiff also put the bus on sale. On 26 March 2003
he received ROL 30,000,000 as the price of the bus, but collected
that amount for his personal use.
On
12 June 2003 the applicants lodged an objection to execution against
the bailiff, seeking from the court to order the bailiff to allocate
them ROL 35,000,000, approximately 920 euros (EUR) at that time,
representing the price of the bus. On 10 July 2003 the District Court
declared their request null and void for non-payment of the stamp
duty. The stamp duty amounted to ROL 174,000, approximately EUR 5 at
that time. In the absence of any appeal, that judgment became final.
Following
several complaints lodged by the applicants, but also by other
persons, on 16 July 2003 the Commission for Discipline of the
Bailiffs' Chamber suspended the bailiff from office.
On
9 March 2006 the District Court convicted the bailiff of embezzlement
and ordered him to pay the applicants ROL 30,000,000 representing the
debt paid by E.I. and also ROL 30,000,000 for loss of profit or
benefit. That judgment became final.
B. Attempts by the bailiff C.D. to enforce the judgment
In
August 2003 the execution file was transferred to the bailiff C.D.
According to the bailiff, but contested by the applicants, the latter
did not submit any request for enforcement.
C. Attempts by the bailiff C.C. to enforce the judgment
On
10 February 2004 the Bailiffs' Chamber transferred the execution file
to the bailiff C.C. On 25 February 2004 the bailiff invited the
applicants to inform him whether they wanted to continue with the
enforcement and whether they had received any money from the debtors.
On
1 April 2004 the applicants expressed their intention to continue
with the execution and declared that they had not received any money.
They also submitted a copy of the official record of 18 February 2003
in respect of the apartment bought at public auction from E.I.
On
21 April 2004 the applicants requested the bailiff to evict E.I. from
that apartment. On 19 May 2004 the bailiff informed them that he had
enjoined the debtors to pay the debt. The bailiff also acknowledged
that the applicants had not recovered any money, nor were they in the
possession of E.I.'s apartment, which had been put on sale by public
auction again.
On
20 July 2004 the applicants lodged a criminal complaint against the
bailiff. On 2 November 2004 the public prosecutor found no reasons to
start criminal proceedings. The applicants did not contest that
decision.
On
23 September 2004 the bailiff requested information from the Isverna
town council in respect of G.I.'s movable and immovable property. The
town council did not answer.
On
4 October 2004 the Bailiffs' Chamber informed the applicants that
they should have registered in the Land Registry their right of
property over the apartment bought on sale by public auction and if
they wanted to benefit from that apartment they should pay the
mortgage.
On
6 October 2004 the bailiff requested information from the Baia de
Aramă town council in respect of
E.I.'s movable and immovable property. On 26 November 2004 the town
council informed the bailiff about E.I.'s assets, which included the
above-mentioned apartment and a vehicle.
On
16 December 2004 the bailiff invited the applicants to his office in
order to allocate them their share of E.I.'s apartment sold on public
auction on 14 October 2004. Following refusal by the applicants, on
4 January 2005 the bailiff reiterated the invitation. On 26
January 2005 the applicants received ROL 24,488,982.
On
3 January 2005 the first applicant lodged an objection to execution
against the debtors, against the bailiffs who had been in charge with
the execution and against the Bailiffs' Chamber, seeking enforcement
of the judgment of 6 February 2001 and appointment of another bailiff
to continue with the execution. The court requested the applicant to
pay a stamp duty in the amount of ROL 1,740,000, approximately EUR 45
at that time. The applicant invoked Article 6 of the Convention,
claimed that the amount of the stamp duty was contrary to the law and
requested recalculation. On 20 January 2005 the District Court
declared his action null and void for non-payment of the stamp duty.
The
first applicant appealed, alleging that the first-instance court had
not taken account of his demand regarding the stamp duty and had
violated Article 6 of the Convention. On 4 May 2005 the Mehedinţi
County Court, by a final decision, dismissed his appeal, considering
that the law regarding the stamp duty had been correctly applied.
On
19 May 2005 the bailiff informed the applicants that he was searching
to locate further assets belonging to the debtors.
On
6 June 2005 the first applicant requested from the bailiff a copy of
the execution file. Following refusal by the bailiff, on 17 January
2006 the applicant sought from the court an order to compel the
bailiff to send him that copy. On 21 February 2006 the Braşov
County Court upheld his request.
On
26 April 2006 the bailiff requested information from the Baia de
Aramă town council in respect of
E.I.'s properties. On 8 May 2006 the town council replied that E.I.'s
assets included a plot of 640 sq. m of land with two constructions on
it and a vehicle.
On
13 July 2006 the applicants reiterated the request to the bailiff to
continue with the execution.
On
9 August 2006 the bailiff requested again information from the
Isverna town council in respect of G.I.'s movable and immovable
property. On 30 August 2006 the town council informed the bailiff
that G.I. had no assets and that he had left the country five years
ago. On 12 March 2007 the bailiff reiterated his request.
On
31 August 2006, following an assessment of execution proceedings, the
bailiff certified in an official record that the debtor E.I. had paid
an amount of 5,448.9 new Romanian lei (RON) out of the total of RON
56,837. Therefore the bailiff ordered the two debtors to pay the
debt.
On
28 September 2006 the bailiff visited E.I.'s property and on
29 September 2006 he served notice to E.I. to pay the debt,
informing him that in case of refusal his immovable assets were to be
put on sale.
On
29 January 2007 the bailiff informed the applicants about the
debtors' situation and invited them to pay the tax for an expert
report in order to evaluate E.I.'s immovable property and then to put
it on sale by public auction. In the absence of any answer by the
applicants, on 23 March 2007 the bailiff reiterated the request for
payment of that tax, but to no avail.
According
to the file, that was the last action taken by the bailiff with a
view to enforce the judgment in the applicants' favour.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law is described in Topciov v. Romania
((dec.), no. 17369/02, 15 June 2006) and Elena Negulescu v.
Romania (no. 25111/02, §§ 20-22, 1 July 2008).
In
support of their objection concerning the exhaustion of domestic
remedies (see below), the Government submitted about sixty judgments
delivered by domestic courts in proceedings concerning objections to
execution. In their actions, those concerned complained against the
bailiffs, either contesting the latter's refusal to carry out a
certain act or, if the bailiff had brought the execution to a
conclusion, requesting the court to order the bailiff to continue
with the execution. When successful, the courts ordered the bailiff
to continue with the execution or to perform the act.
In
particular, by judgment no. 661 of 20 November 2006, which became
final, the Aleşd District Court examined all the acts performed
by the bailiff and considered that the latter's inactivity for four
months represented a refusal to perform the enforcement. Therefore,
it allowed the objection to execution by B.K. and B.I. and ordered
the bailiff to continue with the execution until recovery of the
entire debt.
By
final decision no. 863 of 23 November 2004 the Suceava County Court
dismissed a complaint by G.I. against the bailiff's delay and
omissions in performing the enforcement, considering that the former
had not proved the latter's culpability or refusal to carry out the
execution.
By
judgment no. 249 of 10 May 2007, which became final, the Săveni
District Court dismissed a claim by which T.V. sought moral damage on
the grounds that the bailiff had delayed the enforcement for eight
months, considering that the bailiff's behaviour was not likely to
produce moral damage to T.V.
By
judgment no. 2787 of 27 February 2008, which became final, the
Craiova District Court considered as being inadmissible an action by
I.T. company, which complained about a seven years' delay in
enforcement. The court raised on its own motion an objection of
incompatibility ratione materiae and held that that
action was not within the competence of a court or of any organ with
judicial activity, but was to be resolved exclusively
administratively by the bailiff.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that that the non-enforcement of the judgment
in their favour had infringed their rights guaranteed by Article
6 § 1 of the Convention, which, in so far as relevant,
reads as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
The
Government argued that the applicants had not exhausted domestic
remedies since their two objections to execution (see paragraphs 18
and 30 above) were declared null and void for non-payment of the
stamp duty. They submitted that the applicants should have insisted
on performance by the bailiff of the acts of execution and, in case
of refusal by the latter, they had the possibility to lodge an
objection to execution against that refusal or against the bailiff's
alleged inactivity. The Government considered the objection to
execution as being an adequate, accessible, effective and sufficient
remedy and submitted several examples of objections to execution
examined on the merits by the domestic courts (see paragraphs 40-44
above).
The
applicants considered the objection to execution as being ineffective
when a bailiff delays the enforcement. Moreover, if an objection to
execution was upheld by the courts, the court would only order the
bailiff to perform the act that he had refused to carry out, which
was to comply with his professional obligations, without imposing on
him any other sanction.
The Court considers that the objection raised by the
Government is very closely linked to the substance of the applicants'
complaint under Article 6 § 1 of the Convention. It therefore
considers it appropriate to join this objection to the merits
(Constantin Oprea v. Romania, no. 24724/03, § 31,
8 November 2007).
The
Court concludes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
Government argued that neither the bailiffs nor the authorities were
at fault for the non-enforcement. They submitted that the bailiff
I.M. had been penalized for his abuse, that during the bailiff C.D.'s
terms of office the applicants had not taken any action, that the
bailiff C.C. had acted diligently to enforce that judgment and to
identify the debtor's assets, but was prevented from continuing the
execution by the applicants' refusal to pay the tax for an expert
report.
The
Government also pointed that G.I. had no assets and considered that
it was the applicants' obligation to inform the bailiff about G.I.'s
new address.
The
applicants disagreed. In particular, they submitted that the bailiff
had mistakenly put on sale by public auction an apartment that was
already mortgaged, that he had not seized a vehicle belonging to E.I.
and that the authorities had not taken any action to enjoin G.I. to
pay the debt after he had left the country. They further considered
that the debtors were jointly liable for the whole debt and alleged
that the legal situation of the immovable property for which the
bailiff requested them to pay an expert report was uncertain, due to
some shortcomings in its official registration.
The
Court reiterates that execution of a judgment given by any court must
be regarded as an integral part of the “trial” for the
purposes of Article 6 of the Convention (Hornsby v. Greece, 19
March 1997, § 40, Reports of Judgments and Decisions
1997 II). However, the right of “access to court”
does not impose an obligation on a State to execute every judgment of
civil character without having regard to particular circumstances of
a case (Sanglier v. France, no. 50342/99, § 39, 27
May 2003). The State has a positive obligation to organise a system
for enforcement of judgments that is effective both in law and in
practice and ensures their enforcement without undue delay (Fuklev
v. Ukraine, no. 71186/01, § 84, 7 June 2005). When the
authorities are obliged to act in order to enforce a judgment and
they fail to do so, their inactivity can engage the State's
responsibility on the ground of Article 6 § 1 of the Convention
(Scollo v. Italy, 28 September 1995, § 44, Series A no.
315 C).
The
Court is not called upon to examine whether the internal legal order
of the State is capable of guaranteeing the execution of judgments
given by courts. Indeed, it is for each State to equip itself with
legal instruments which are adequate and sufficient to ensure the
fulfilment of positive obligations imposed upon the State (Ruianu
v. Romania, no. 34647/97, § 66, 17 June 2003).
The Court's only task is to examine whether the measures applied by
the Romanian authorities in the present case were adequate and
sufficient. In cases such as the present one, which necessitate
actions by a debtor who is a private person, the State, as the
possessor of the public force, has to act diligently in order to
assist a creditor in execution of a judgment (Fociac v. Romania,
no. 2577/02, § 70, 3 February 2005).
In
the present case the Court notes that the applicants were entitled to
recover a certain amount of money from two private persons, E.I. and
G.I. The applicants have not recovered so far the entire amount of
money to which they were entitled and thus the judgment of 6 February
2001 remains unenforced. Therefore, the Court will examine whether
the authorities have acted diligently in order to assist the
applicants in execution of that judgment.
The
Court first notes that G.I. left the country in 2001 and that the
applicants have not taken any steps to find his new address. In that
respect, the Court reiterates that under Romanian law a bailiff has
no obligation to identify the place of residence of a debtor who had
disappeared (Topciov, cited above).
The
Court also notes that the applicants made no response whatever to the
call by the bailiff in January and then in March 2007 to pay the tax
for an expert report in order to evaluate E.I.' immovable property
(see paragraph 38 above). In the absence of such an expert report,
the bailiff had not taken any further action with a view to enforce
the judgment in the applicants' favour. Having regard to the fact
that the applicants remained passive, the Court considers that the
authorities bear no responsibility for the interruption of the
execution after that date. Therefore, it will examine whether the
authorities have acted diligently in order to assist the applicants
until January 2007.
The
Court points to the shortcomings in the execution carried out by the
bailiff I.M. One the one hand, that bailiff sold some of one debtor's
assets and collected the money for his personal use, being
subsequently convicted of embezzlement (see paragraphs 17 and 20
above). On the other hand, he sold an apartment belonging to the same
debtor, which was already mortgaged by a bank (see paragraph 16
above). As a result, the applicants, who had bought that apartment on
account of their debt, were prevented from recovering the
corresponding amount and collected only what remained after a second
sale of that apartment and after payment of the mortgage (see
paragraph 29 above). The Court concludes that the applicants bear no
responsibility for those actions by that bailiff.
The
Court notes certain delays in the bailiff I.M.'s activity in putting
the apartment on sale and also the fact that he had evaluated that
apartment only after he had scheduled a first sale (see paragraphs
11, 13, 15 and 16 above). It further notes the delay of seven
months between the seizure of the bus and the moment when scheduled
it for sale by public action and also the delay of one year until he
scheduled another sale (see paragraphs 10 and 17 above). This cannot
be considered diligent in the circumstances.
The
Court also observes the delays in the acts of execution performed by
the bailiff C.C. Thus, it took him more than four months from the
date when he found that the applicants had not recovered any money
until he requested information from authorities in respect of the
debtors' assets (see paragraphs 24, 26 and 28 above). Then, it took
him almost six months from the date when he knew about those assets
until the moment when he decided to locate further assets (see
paragraphs 28 and 31 above), without doing any act of execution in
that period. Moreover, it took him almost one year in order to
request information as to those assets (see paragraphs 31 and 33
above), again without doing any activity during that time. Finally,
it took that bailiff almost five months to take action and to
evaluate one of the debtor's assets (see paragraphs 33 and 37 above).
Therefore,
the Court concludes that the two bailiffs did not act diligently in
order to assist the applicants in execution of the 2001 judgment. In
that respect, it notes that the Government have not provided examples
from the domestic practice in respect of complaints about belated
acts of execution by a bailiff. On the contrary, the domestic courts
dismissed complaints about delay in enforcement (see paragraphs 42
and 43 above) and even considered such a complaint as being
incompatible ratione materiae (see paragraph 44 above).
The Court therefore finds no reason to depart from its conclusion in
similar cases that, to date, the Government have not demonstrated
that the objection to execution would be an effective remedy (Elena
Negulescu, cited above, § 43; and Constantin Oprea,
cited above, § 41). It therefore dismisses the Government's
objection concerning the exhaustion of domestic remedies.
The
Court finally points to further shortcomings in the execution. Thus,
it observes that the Isverna town council did not respond to the
bailiff's request in respect of G.I.'s movable and immovable property
(see paragraph 26 above). It also notes that the bailiff C.C. did not
seize a vehicle belonging to E.I. (see paragraph 28 above).
In
the light of the foregoing, the Court considers that the authorities
did not act diligently and in due time in order to assist the
applicants in execution of the judgment in their favour.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
The
applicants further complained that as a result of the non-enforcement
of the judgment in their favour they had been deprived of their
property and suffered pecuniary losses in violation of Article 1 of
Protocol No. 1.
Having
regard to the findings in the paragraphs 54-63 above, the Court
concludes that this complaint must be declared admissible, but that
it is not necessary to examine it on the merits (see, mutatis
mutandis, Laino v. Italy [GC], no. 33158/96, §
25, ECHR 1999 I; Canea Catholic Church v. Greece, 16
December 1997, § 50, Reports 1997 VIII, and Ruianu,
cited above, § 75).
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
The
applicants claimed 121,702.98 new Romanian lei (RON) in respect of
pecuniary damage, representing the updated value of the remaining
debt. They also claimed RON 120,000 in respect of
non-pecuniary
damage.
The
Government contested the applicants' calculations and considered that
the finding of a violation would constitute in itself sufficient just
satisfaction for any non-pecuniary damage which the applicants might
have suffered. In any event, they considered that the amount claimed
in that connection was too high.
The
Court notes that the judgment in favour of the applicants has been
partially enforced (see paragraph 36 above). However, it reiterates
its findings in paragraph 56 above and will not make an award under
this head.
The
Court considers that the interference with the applicants' right of
access to a court caused moral prejudice to the applicants. Making an
assessment on an equitable basis, as required by Article 41 of the
Convention, it awards them jointly 4,800 (euros) EUR in respect of
non pecuniary damage.
B. Costs and expenses
The
applicants also claimed RON 4,550.57 for the costs and expenses
incurred in the proceedings in the domestic courts and before this
Court, representing lawyer's fees, postal service, notary's taxes and
stamp duties. They submitted invoices.
The
Government contested these claims.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession, to the above criteria and to the
fact that the present case is of a repetitive nature which does not
raise any complex issues, the Court considers it reasonable to award
the sum of EUR 300 covering costs under all heads.
C. 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
Joins to the merits the Government's
preliminary objection concerning the exhaustion of domestic remedies
and dismisses it;
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there is no need to examine on the
merits the complaint under Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay jointly the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement:
(i) EUR
4,800 (four thousand eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
300 (three hundred euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
