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CHIS v ROMANIA - 3360/03 [2010] ECHR 1277 (14 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1277.html
Cite as:
[2010] ECHR 1277
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THIRD
SECTION
CASE OF CHIŞ v.
ROMANIA
(Application
no. 3360/03)
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 Chiş
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. 3360/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Radu Doru Chiş
(“the applicant”), on 13 January 2003.
The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu Radu.
On
16 April 2009 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
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1953 and lives in Bucharest.
The
applicant worked as chief of the catering division of TAROM company
(the Romanian Air Transport company), a State-owned company. In 1990,
by a Government decision, the catering branch of TAROM became a new
company, CASROM. In 1998 CASROM merged into the COMCHIM company, a
private company. In 2004 that company changed its name into ROMAQUA.
A. Actions against TAROM/CASROM
On
8 February 1990 the applicant was dismissed from his job. He
challenged that decision and on 9 November 1992 the Ilfov District
Court ordered CASROM to reinstate the applicant in his previous job
or in an equivalent post, and TAROM to pay him 154,043 Romanian lei
(ROL) as overdue salary for the period February 1990 to September
1992, and also to pay him salary until effective reinstatement. That
judgment became final on 28 May 1993.
1. Actions for enforcement against TAROM
On
6 June 1996 the applicant lodged an action against TAROM and CASROM
for payment of salary until effective reinstatement and for bringing
the amount of ROL 154,043 up-to-date in accordance with inflation. On
3 February 2005 the Bucharest Court of Appeal, by a final decision,
ordered TAROM to pay the applicant that amount indexed to take
account of inflation.
In
March and April 2004, and then in April 2005, the bailiff sought to
attach the company's financial assets in several banks in respect of
the salaries due. Those seizures were endorsed by the courts.
On
28 April 2004 the Bucharest District Court declared that the judgment
of 9 November 1992 could be enforced.
On
19 May 2004 TAROM lodged an objection to execution, alleging that the
applicant's right to request enforcement of that judgment had become
time-barred. The Bucharest County Court upheld that request by a
final decision of 17 June 2005, declaring that the applicant's right
to request enforcement of the judgment of 9 November 1992 was
time-barred.
On
23 March 2007 the Bucharest County Court dismissed as
time–barred
an action by the applicant for payment of salaries from 1990 to 1999
and of other pecuniary rights related to his employee capacity.
However, on 27 September 2007 the decision was quashed by the
Bucharest Court of Appeal and the case sent for fresh consideration.
No information on the outcome of the proceedings is available to the
Court.
On
26 April 2007 the Bucharest County Court dismissed an action by the
applicant for payment of salary and connected rights from 1999
onward, for lack of responsibility of TAROM. The court considered
that the applicant should have taken action against COMCHIM/ROMAQUA.
That judgment became final.
2. Actions for enforcement against
CASROM/COMCHIM/ROMAQUA
(a) Action for comminatory damages
On
13 March 1995 the applicant sought comminatory damages from CASROM
for non compliance with the judgment of 9 November 1992.
On
13 June 1996 the Bucharest District Court set comminatory damages of
ROL 50,000 per day until the applicant's effective reinstatement. The
court held that CASROM had systematically refused to reinstate the
applicant. That judgment became final on 9 June 1997.
On
5 December 1997 the applicant requested quantification and payment of
comminatory damages.
On
11 January 1999 the Bucharest District Court upheld his request and
set to ROL 69,250,000 the amount corresponding to damage for
non-compliance between 5 October and 14 December 1998. On 6
October 1999 Bucharest County Court upheld that judgment.
On 16
November 1999 ROMAQUA paid that amount.
On
5 June 1999 the applicant sought again quantification and payment of
comminatory damages.
On
20 December 2000 the Bucharest District Court ordered the debtor to
pay ROL 54,627,890, of which ROL 10,467,750 was comminatory damages
for 14 December 1998-15 November 1999 and ROL 44,160,140 was
indexation of the damages set on 11 January 1999. On 26 April
2001 the Bucharest County Court declared the debtor's appeal null and
void for non-payment of court fees.
On 21
May 2001 ROMAQUA paid that amount.
(b) Action for non-pecuniary damages
On
22 October 1999 the Bucharest County Court ordered COMCHIM to pay the
applicant ROL 200,000,000 for non-pecuniary damage caused by the
refusal to comply with the court orders.
On
13 March 2001 the Bucharest Court of Appeal upheld that judgment.
On
3 September 2002 COMCHIM paid the applicant ROL 395,900,000,
representing the updated above-mentioned amount.
However,
on 17 December 2002 the Supreme Court of Justice quashed the previous
decisions and sent the case back to the County Court.
After
retrial, on 24 November 2003 the County Court dismissed the action on
the grounds that it had been objectively impossible for the debtor to
comply with the obligation to reinstate the applicant because of the
reorganisation of the company.
On
9 June 2004 the Bucharest Court of Appeal allowed an appeal by the
applicant, quashed the previous judgment and ordered ROMAQUA to pay
the applicant ROL 500,000,000 for non pecuniary damages. It
considered that the “objective impossibility” had not
been proved and that in any case it could not justify non-compliance.
That judgment became final on 27 January 2006.
On
26 August 2004 Bucharest District Court attached ROMAQUA's financial
assets in a bank. On 3 February 2005 the Bucharest Court of Appeal
upheld that interlocutory judgment.
On
1 September 2004 ROMAQUA paid ROL 500,000,000.
On
27 September 2004 ROMAQUA objected to the execution, submitting that
it had already paid ROL 395,900,000 and that the execution should
have been continued only for the remaining until ROL 500,000,000. On
14 July 2005 the Bucharest County Court, by a final decision, upheld
the objection and annulled the execution insofar as it concerned the
payment of ROL 395,900,000 in the applicant's favour.
According
to the applicant, ROMAQUA had not claimed the difference that it had
paid.
3. Action for damages for length of the proceedings
related to his dismissal, lodged against the Ministry of Justice
On
8 August 2002 the applicant lodged an action against the Ministry of
Justice, seeking pecuniary and non-pecuniary damages for length of
the proceedings related to his dismissal. On 4 November 2002 the
Bucharest County Court dismissed his action, considering that the
Ministry of Justice bore no responsibility for the alleged facts.
That judgment became final on 18 March 2004.
4. Execution
On
11 June 1993 CASROM invoked the impossibility to reinstate the
applicant in a post corresponding to his qualifications and offered
him the post of night watchman, which was rejected by the latter.
On
6 June 1995 TAROM paid ROL 154,043 for salaries for the period
February 1990 to September 1992, as ordered by the judgment of
9 November 1992, as well as ROL 217,563 for salaries until 30
June 1993.
On
17 March 1999 COMCHIM reinstated the applicant.
On
12 November 2004 TAROM paid ROL 4,235,986,868 for due and updated
salaries.
On
20 June 2005 the bailiff also received for the applicant
ROL 340,000,000 from TAROM, in compliance with the judgment of
9 November 1992, representing salaries from 15 February 1990 to
17 March 1999 indexed.
On
1 July 2009 the Bucharest District Court allowed a request by TAROM
and ordered the applicant to return the amount of 457,598.68 new
Romanian lei (RON). The court considered that TAROM had paid all the
debt. The applicant appealed and the proceedings are still pending.
B. Action against the Financial Control Office (Garda
Financiară)
In
1991 and then in 1992 the applicant passed two competitions for a
post within the Financial Control Office. Following refusal by that
institution to employ him, the applicant brought court proceedings.
On
14 December 1995 Bucharest District Court ordered the Financial
Control Office to employ the applicant as from 20 October 1992 and to
pay him ROL 2,000,000 for damages and ROL 100,000 for court fees.
That judgment became final on 30 May 1997.
In 1999 the courts declared that the judgment had
become enforceable and that it could be enforced. However, the
applicant was not employed allegedly because he was a collaborator of
the former State Security Department (Securitate). By a
decision of 25 September 2007 the National Council for the Study of
the Archives of the Securitate declared that the applicant had
not been a collaborator.
On
25 February 2008 the applicant sought again employment with the
Financial Control Office. On 27 March 2008 the bailiff enjoined that
institution to employ the applicant. However, the Financial Control
Office considered that the applicant's right to request
enforcement was time-barred.
On
9 May 2008 the bailiff certified in an official record the
institution's refusal to employ the applicant and considered
necessary to apply a pecuniary penalty for delay in enforcement.
On
12 May 2008 the applicant brought proceedings against the Financial
Control Office, seeking from the court to order that institution to
employ him as from 20 October 1992, as ordered by the judgment of
14 December 1995, and to pay him damages.
On
16 June 2008 the Bucharest District Court rejected his request to be
employed as res judicata. It further held that his right to
request enforcement of that judgment was time-barred.
On
22 September 2008 the Bucharest County Court allowed an appeal by the
applicant, quashed the previous judgment and send the case back for a
fresh consideration. On 23 June 2009 the Bucharest Court of Appeal
upheld that judgment by a final decision.
The
proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the judgments of 9 November 1992 and 14
December 1995 had not been fully and timeously enforced and had thus
infringed his rights guaranteed by Article 6 § 1 of the
Convention, which, 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...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The
Government considered that the judgment of 9 November 1992 had been
fully enforced. As for the applicant's action against the Financial
Control Office, they submitted that between 1991 and 2004 that
institution had no legal personality and employment with it was
performed by a minister's order. The Government submitted that the
applicant's action to be employed by the Financial Control Office was
still pending and concluded that there was no legal basis to enforce
the judgment of 14 December 1995.
The
applicant disagreed, insisting on the long delay in enforcement. He
also considered that the judgments in his favour had not been fully
enforced.
The
Court reiterates that execution of a final 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, and Immobiliare Saffi v. Italy
[GC], no. 22774/93, § 63, ECHR 1999-V). 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). Where
administrative authorities refuse or fail to comply, or even delay
doing so, the guarantees under Article 6 enjoyed by a litigant during
the judicial phase of the proceedings are rendered devoid of purpose
(Hornsby, cited above, § 41).
The
Court notes in the present case that by a judgment of 9 November
1992 the Ilfov District Court ordered two State-owned companies to
reinstate the applicant in his previous job or in an equivalent post,
and to pay him salary. That judgment became final on 28 May 1993. The
applicant was reinstated on 17 March 1999. The due salaries were paid
on 6 June 1995, on 12 November 2004 and then on 20 June 2005. The
Government did not point out any circumstances justifying the delays
in enforcement. The Court finds it unacceptable that a judgment
against State-owned companies not be honoured for such a long period
of time.
The
Court further notes that by a judgment of 14 December 1995 the
Bucharest District Court ordered a public institution to employ the
applicant as from 20 October 1992 and to pay him damages. Although
the authorities had an obligation to enforce court judgments, the
judgment of 14 December 1995 remains unenforced to date. That
judgment is nevertheless still valid, no proceedings having been
instituted under Romanian law for its modification or annulment
before the domestic courts. Apart from enforcement, it is only by
such an annulment or substitution by the courts with an equivalent
obligation that a situation of continuous non-enforcement may come to
an end (see Sabin Popescu v. Romania, no. 48102/99, § 54,
2 March 2004).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the ones in the present
case (see, among others, Sacaleanu v. Romania, no. 73970/01, 6
September 2005; Strungariu v. Romania, no. 23878/02, 29
September 2005, and Miclici v. Romania, no. 23657/03, 20
December 2007).
Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The authorities have not deployed all necessary efforts to enforce
fully and in due time the judgments in the applicant's favour. There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 6 § 1 that different outcomes
were unfair, that the domestic courts had failed to assess the facts
correctly and had misinterpreted the domestic law.
The
applicant also considered that the protraction of the various
proceedings had infringed his Article 8 rights and alleged an
infringement of his freedom of speech by the Financial Control
Office. The applicant also considered the outcome of his action
against the Ministry of Justice as being a violation of his right to
an effective remedy under Article 13.
The
applicant further relied on internal legislation and on some other
international conventions in respect of an alleged violation of his
right to work.
Having
carefully considered the applicant's submissions in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of 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
The
applicant sought employment with the Financial Control Office. In
respect of pecuniary damage, he claimed the following amounts:
– 310,463 euros (EUR) as a result of non-enforcement
of the judgment of 14 December 1995, representing the updated amount
of 2,000,000 old Romanian lei ordered by that judgment and salary as
from 1 November 1992, on the basis of a EUR 1,500 monthly salary, as
allegedly earned by people employed with the Financial Control
Office;
– EUR 42,807 as pay rise due by TAROM;
– EUR 67,707 as social security contributions;
– EUR 134,070 in respect of loss of profit or any
benefit, on the basis of the interest established by the National
Bank of Romania;
– EUR 29,386 representing difference in comminatory
damages due by CASROM/COMCHIM/ROMAQUA.
The
applicant also claimed EUR 150,000 in respect of non-pecuniary
damage.
The
Government contested any causal link between the violation alleged
and the pecuniary damage claimed and submitted that the amounts
established by the judgments in the applicant's favour had been fully
and timeously paid. Furthermore, they considered that the finding of
a violation would constitute in itself sufficient just satisfaction
for any non-pecuniary damage which the applicant might have suffered.
In any event, they considered that the amount claimed in that
connection was too high.
As
regards the judgment of 14 December 1995, the Court considers that,
in so far as it remains in force, the State's outstanding obligation
to enforce it cannot be disputed. Accordingly, the applicant is still
entitled to enforcement of that judgment. The Court reiterates that
the most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is put
in the position he would have been in had the requirements of Article
6 not been disregarded (see Piersack v. Belgium (Article 50),
26 October 1984, § 12, Series A no. 85). The Court finds that
this principle also applies in the present case, having regard to the
violation found. It therefore considers that the Government must
secure, by appropriate means, the enforcement of the judgment of 14
December 1995, namely the employment of the applicant with the
Financial Control Office and to pay him damages, in the conditions
provided by that judgment.
The
Court further points out that its judgments are essentially
declaratory in nature. In general, it is primarily for the State
concerned to choose the means to be used in its domestic legal order
in order to discharge its legal obligation under Article 46 of the
Convention (see Shofman v. Russia, no. 74826/01, §
53, 24 November 2005, with further references). By finding a
violation of Article 6 § 1 of the Convention in the present
case, the Court has established the Government's obligation to take
appropriate measures to remedy the applicant's individual situation,
that is, to ensure compliance with the applicant's enforceable claim
under the judgment of 14 December 1995 (compare with Fadeyeva
v. Russia, no. 55723/00, § 142, ECHR 2005-...). Whether this
involves employing the applicant in the job provided by that judgment
or in an equivalent job or, if this is not possible, granting him
reasonable compensation for non-enforcement, or a combination of
these and other measures, is a decision that falls to the respondent
State (see Tarverdiyev v. Azerbaijan, no. 33343/03, § 66,
26 July 2007, and Ursan v. Romania, no. 35852/04, § 46, 6
April 2010). The Court, however, emphasises that any measures adopted
must be compatible with the conclusions set out in the Court's
judgment (see Assanidze v. Georgia [GC], no. 71503/01, §
202, ECHR 2004-II, with further references).
As
regards the pecuniary damage claimed by the applicant, the Court
observes that in the present case it has found a violation of Article
6 § 1 of the Convention in that the judgments in the applicant's
favour have not been enforced fully and in due time. Moreover, the
applicant has received salary as ordered by the judgment of 9
November 1992. In any event, the question of whether the applicant
would have been able to obtain the amounts alleged in respect of
pecuniary damage, had the national authorities properly enforced the
judgments in his favour, is a matter of speculation in the
circumstances of the case (see Sacaleanu, § 72, and
Strungariu, § 54, cited above). The Court therefore
rejects the pecuniary claim.
The
Court considers that the serious interference with the applicant's
right of access to a court caused moral prejudice to the applicant.
Making an assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards him EUR 4,800 in respect of
non pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 5,825 for the costs and expenses, broken
down as follows: EUR 2,873 for lawyers' fees in domestic proceedings,
EUR 925 for expert reports, EUR 236 for law materials for individual
study, EUR 744 for judicial fines imposed on him for his requests to
challenge judges, EUR 347 for translations and EUR 700 for postal
fees. He submitted invoices and copy of legal assistance contracts.
The
Government contested these claims. In particular, they submitted that
the legal assistance contracts had not included information on the
number of working hours. However, they agreed with the costs covering
the bailiff's fees, translation of Government's observations and
correspondence with the Court.
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 and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,100 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
Declares the complaint concerning Article 6 §
1 of the Convention in respect of enforcement of final decisions
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State shall ensure, by appropriate means, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the
enforcement of the judgment of 14 December 1995 of the Bucharest
District Court;
(b) that
the respondent State is to pay the applicant, within the same three
months, 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
1,100 (one thousand one hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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 applicant's 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
