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Cite as: [2011] ECHR 1808

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THIRD SECTION

DECISION

Application no. 29218/05
by Pantelimon and Vasilica SAVU
against Romania

The European Court of Human Rights (Third Section), sitting on 11 October 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 2 August 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Pantelimon Savu (the first applicant) and Ms Vasilica Savu (the second applicant), are Romanian nationals who live in Izvoarele. They were represented before the Court by Mr G. Dumitrache, a legal adviser practising in Târgovişte.

A. The circumstances of the case

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

1. Request to obtain a certificate from the mayor of Voineşti

On 31 October 2002 the applicants lodged a judicial complaint against the mayor of the municipality of Voineşti (“the mayor”), seeking an order for the latter to issue a certificate concerning land ownership rights within the municipality during the period from 1959 to 1963, under sanction of penalty payments. They indicated that they needed the certificate in the framework of a different set of proceedings, aimed at obtaining recognition of ownership rights over a plot of land (see the proceedings described in paragraphs 5 and 6 below). They wanted to rely on that certificate to prove their prior ownership rights over the claimed plot of land. In a final decision of 3 February 2003 the Ploieşti Court of Appeal ruled that the mayor should issue the certificate that the applicants had requested, under sanction of penalty payments of 100,000 Romanian lei per day until the main obligation had been executed.

The applicants appealed to a bailiff for the enforcement of the final decision of 3 February 2003, seeking mainly the payment of penalties. The mayor contested all of the attempts at forced execution. Final decisions were delivered by the Dâmboviţa County Court on 5 November 2004, 19 April 2005 and 29 September 2008. The first decision dismissed the mayor’s challenge and indicated that the decision of 3 February 2003 could be enforced. The latter two decisions allowed the mayor’s challenge and declared void all execution measures. In so ruling, the County Court indicated that the penalty payments imposed by the final decision of 3 February 2003 which the applicants sought to enforce could not be enforced with the assistance of a bailiff, as only a court could determine the total amount to be paid, by assessing the damage incurred by the creditors as a result of the delay in enforcing the decision. It then established that the applicants had failed to lodge such a judicial request.

2. Request to obtain restitution of land

On an unspecified date in 2002, the first applicant lodged a judicial request with the aim of having his ownership rights over a plot of land recognised. In a final decision of 27 August 2003, the Ploieşti Court of Appeal allowed his request and recognised his ownership rights, by referring, inter alia, to a certificate issued by the Voineşti town hall, which indicated that he used to own this plot of land in the period between 1959 and 1963.

This judgment was partly enforced in 2004, when an ownership title deed was issued for part of the land. The first applicant received possession of the whole plot of land on 25 September 2008, and an ownership title deed concerning the same plot was issued on 5 January 2009.

B. Relevant domestic law and practice

Article 580³§ 2 of the Romanian Code of Civil Procedure (CCP), read together with Article 574, as in force at the time of the events, provided that any damage incurred as a result of a failure to execute an obligation to take a certain action was to be determined by a court, which should deliver its decision after having summoned the parties.

In a final decision of 12 December 2005 the High Court of Cassation and Justice (HCCJ) interpreted the above-mentioned provisions of the CCP with a view to harmonising the different interpretations that had been adopted by the domestic courts. The HCCJ ruled that penalty payments imposed in a judicial decision finding an obligation to take a certain action or to refrain from taking a certain action were not directly enforceable, but had to be quantified by a court in a subsequent decision. That latter court decision should determine the actual amount to be paid by the debtor, which would be the equivalent of the damage which had been incurred by the creditor owing to the delay in enforcing the main obligation.

Article 580³of the CCP was amended on 12 January 2007 with the insertion of a new paragraph which expressly forbids the awarding of penalty payments in favour of creditors in the context of enforcement of an obligation to act or not to act in a certain way.

The new CCP, still not enforced, maintains this prohibition.

COMPLAINTS

The applicants complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention that the final decisions of 3 February 2003 and 27 August 2003 had not been executed.

In a letter of 9 February 2009, the applicants declared that following the execution of the final decision of 27 August 2003, they requested the Court to examine only their complaint in respect of the failure to execute the final decision of 3 February 2003.

THE LAW

The applicants complained about the non-enforcement of the judgments in their favour. They relied on Article 6 § 1 and Article 13 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 13

“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.”

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.”

As regards the complaint concerning the non-enforcement of the final decision of 27 August 2003, the Court takes notes of the applicants’ letter of 9 February 2009, informing the Court that the matter had been resolved and that they did not want the Court to examine the matter further. The Court therefore decides to strike out this part of the application in accordance with Article 37 § 1 (c) of the Convention.

As to the complaint concerning the non-execution of the final decision of 3 February 2003, the Court notes at the outset that this decision comprised two elements: first, the obligation on the mayor to issue a certificate concerning land ownership rights within the municipality of Voineşti during the period from 1959 to 1963 and secondly, the obligation on the mayor to pay penalties until he complied with the first obligation.

The Court further notes that the second obligation imposed on the mayor, the payment of penalties, was subsidiary to the first obligation, its aim being to compel the debtor to comply with the main obligation. In this regard, it should be observed that in previous cases against Romania, the Court emphasised that under Romanian law daily penalties were not directly enforceable, as a creditor had to first lodge a judicial request to have their actual amount determined according to the damage they had incurred as a result of the delay or lack of execution of the main obligation (see Gavrileanu v. Romania, no. 18037/02, § 66, 22 February 2007, and Ciornei v. Romania, no. 6098/05, § 26, 21 July 2009).

Taking into account these elements, the Court considers that it has to determine next whether the applicants’ complaints concerning the non execution of the final decision of 3 February 2003 are admissible under Article 35 of the Convention, as amended by Protocol No. 14 to the Convention, which entered into force on 1 June 2010.

Protocol No. 14 added a new admissibility requirement to Article 35 which, in so far as relevant, provides as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

The Court reiterates that the new provision applies from the date of its entry into force to all applications pending before the Court, except those which have already been declared admissible (see Gaftoniuc v. Romania (dec.), no. 30934/05, 22 February 2011).

Thus, the Court will examine of its own motion whether following the alleged non-execution: (a) the applicants have suffered a significant disadvantage; (b) respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits; and (c) the case was duly considered by a domestic tribunal.

1. Whether the applicants have suffered a significant disadvantage

The Court notes that the main element of the criterion introduced by Protocol No. 14 is whether the applicant has suffered a significant disadvantage.

The Court has previously held that this criterion applies where, notwithstanding a potential violation of a right from a purely legal point of view, the level of severity attained does not warrant consideration by an international court (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; Korolev v. Russia (dec.), no. 25551/05, 1 July 2010; and Gaftoniuc, cited above). Further, the level of severity must be assessed in the light of the financial impact of the matter in dispute and the importance of the case for the applicant.

In the circumstances of the present case, the Court reiterates that the main obligation to be executed was the obligation to issue a certificate concerning land ownership rights within the municipality of Voineşti during the period from 1959 to 1963. As such, this obligation cannot be quantified financially. Nevertheless, taking into account the applicants’ submissions that this certificate was needed in order for them to prove their ownership rights in the framework of the proceedings in which they sought restitution of a plot of land, the Court is ready to accept that these proceedings concerned a civil right within the meaning of Article 6 § 1 of the Convention which was important for the applicants.

The Court notes next that in a final decision of 27 August 2003, the domestic courts recognised the first applicant’s ownership rights over the plot of land that he claimed and in so deciding, they relied in particular on a certificate that had been issued by the town hall concerning land ownership rights within the municipality of Voinesti during the period from 1959 to 1963.

Without deeming it necessary to rule whether the certificate used in the framework of the proceedings concerning the first applicant’s ownership rights was exactly the same certificate that constituted the object of the proceedings against the mayor, the Court finds that from 27 August 2003, when the ownership rights over the claimed plot of land were recognised in a final judicial decision, the purpose for which they sought to obtain the certificate had been attained. The applicants did not put forward any other reason to justify the purpose of their claim against the mayor, besides the assertion that they needed the certificate in order to prove their prior ownership rights over the land claimed in the proceedings described under paragraphs 5 and 6 above.

It follows, therefore, that from the date when their ownership rights over the claimed plot of land had been recognised in a final judicial decision and the purpose for which they sought to obtain the certificate had been attained, the applicants cannot be deemed to have suffered a significant disadvantage as a result of the alleged non-execution of the final decision of 3 February 2003 as regards the obligation to issue a certificate.

Moreover, taking into account the subsidiary nature of the obligation to pay penalties, as a mechanism for compelling a debtor to comply with the main obligation, the Court considers likewise that the failure to enforce that decision in respect of this subsidiary obligation did not cause the applicants a significant disadvantage.

As to the period before 27 August 2003, the Court does not find the delay of almost seven months excessive (see, mutatis mutandis, Fedorov and others v. Russia (dec.), no. 33382/04, 17 January 2008). It therefore concludes that this delay did not cause the applicants a significant disadvantage either.

In view of the foregoing, the Court concludes that the applicants have not suffered a significant disadvantage as a result of the alleged non-enforcement of the final decision of 3 February 2003.

2. Whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits

The Court further observes that the problem of non-enforcement in Romania has been addressed on numerous occasions in its judgments (see, among many other authorities, Durdan v. Romania, no. 6098/03, 26 April 2007, and Şurtea v. Romania, no. 24464/03, 25 November 2008). The examination of this application on the merits would not introduce any new element in this regard (see Gaftoniuc, cited above).

The Court therefore concludes that respect for human rights as defined in the Convention and its Protocols does not require an examination of the application on the merits.

3. Whether the case was duly considered by a domestic tribunal

The Court observes that Article 35 § 3 (b) does not allow the rejection of an application on the grounds of the new admissibility requirement if the case has not been duly considered by a domestic tribunal.

In the Court’s view, the facts of the present case taken as a whole disclose no denial of justice at the domestic level. The applicants’ initial complaints against the mayor were considered at two levels of jurisdiction, and their claims were granted. Furthermore, Romanian legislation had in place at the relevant time a mechanism for the enforcement of judgments in order to ensure the fulfilment of positive obligations imposed upon the State in this respect (see, mutatis mutandis, Korolev, cited above, and Burov v. Moldova (dec.), no. 38875/03).

The applicants’ subsequent attempts to enforce the judgment failed, as the domestic courts found that they had not brought a judicial action to determine the actual amount of the penalty payments due. This situation does not constitute a denial of justice imputable to the authorities.

The Court concludes therefore that the applicants’ case was duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b).

4. Conclusion

The three conditions of the new inadmissibility criterion having therefore been satisfied, the Court finds that this complaint must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as it relates to the complaint concerning the non-execution of the final decision of 27 August 2003 in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible in accordance with Article 35 § § 3 (b) and 4 of the Convention.

Santiago Quesada Josep Casadevall Registrar President