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URL: http://www.bailii.org/eu/cases/ECHR/2011/1038.html
Cite as: [2011] ECHR 1038

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41304/04
by Marcel GHIŢĂ
against Romania

The European Court of Human Rights (Third Section), sitting on 31 May 2011 as a Committee composed of:

Egbert Myjer, President,
Luis López Guerra,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 8 November 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marcel Ghiţă, is a Romanian national who was born in 1949 and lives in Bucharest. He was represented before the Court by Mr Costel Alaci, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 22 February 2002, by an order issued by the president of the Romanian Court of Accounts, the applicant was dismissed from his position of director of the Department for financial control. By a subsequent order of 25 February 2002 he was appointed as financial inspector, class I, within the same department. A new order issued on 11 March 2002 changed again the applicant’s position into assistant financial inspector with a substantial decrease in his salary.

On 5 March 2002 the applicant’s request to be transferred to the Athenaeum University was approved by the president of the Court of Accounts.

On 14 May 2002 the applicant challenged the above mentioned three orders before the courts, seeking the reinstatement in his position as a director within the Romanian Court of Accounts and the payment of salary arrears.

On 22 August 2002 the Bucharest County Court partially allowed the applicant’s action and annulled solely the order of 11 March 2002. The court ordered the applicant’s reinstatement on the position of financial inspector as provided by the order of 25 February 2002 as well as the payment of the salary due for this position starting from 11 March 2002 and until the date of the actual reinstatement. On 13 November 2002 the Bucharest Court of Appeal upheld this judgment by a final decision.

On 17 December 2002 the Court of Accounts received a request sent by the applicant through the intermediary of a bailiff’s office seeking the enforcement of the above mentioned final judgment.

By an order issued by the president of the Romanian Court of Accounts on 8 January 2003, the applicant was reinstated in his position of financial inspector as provided by the order of 25 February 2002 for a period starting from 19 February 2002 and until 5 March 2002, the date of his transfer to the Athenaeum University.

On 14 March 2003 the Court of Accounts requested before the courts the annulment of the enforcement proceedings instituted by the applicant on 17 December 2002, in so far as the court’s order had already been complied with.

By a final judgment delivered on 13 October 2003 the Bucharest County Court annulled the enforcement proceedings holding that the judgment of 22 August 2002 had already been fully enforced by the order of
8 January 2003 issued by the president of the Court of Accounts. In this respect the court considered that the obligation to reinstate the applicant in his former position and payment of due salary rights concerned only the period of time until 5 March 2002, the date of the applicant’s transfer to another institution.

B. Relevant domestic law and practice

The relevant domestic law concerning the execution of final judgments, namely excerpts of the Civil Procedure Code and Law no. 188/2000 on the powers and functions of bailiffs, is summed up in the Court’s judgment in the case of Topciov v. Romania ((dec.), no. 17369/02, 15 June 2006).

COMPLAINTS

The applicant complained of the non-enforcement of the judgment of 22 August 2002 of the Bucharest County Court which infringed his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

THE LAW

The applicant alleged that the judgment of 22 August 2002 of the Bucharest County Court had not been enforced, since his employer, the Romanian Court of Accounts, had reinstated him only until 5 March 2002. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... 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.

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 Government rejected the allegation.

In the assessment of the circumstances of the present case the Court notes that the applicant’s allegation concerning the non-enforcement of the 22 August 2002 judgment has already been analysed by a domestic court. In particular, in its final judgment of 13 October 2003 the Bucharest County Court held that by the order of 8 January 2003 the president of the Court of Accounts had fully executed the judgment under dispute. In the light of all the material before it, the Court sees no reason to depart from the domestic court’s findings in the present case.

It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Egbert Myjer
Deputy Registrar President