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Cite as: [2011] ECHR 1852

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THIRD SECTION

CASE OF RJ IMPORT ROGER JAEGER A.G. AND
RJ IMPORT BUCUREŞTI S.A. v. ROMANIA

(Application no. 19001/05)

JUDGMENT

STRASBOURG

3 November 2011

This judgment is final but it may be subject to editorial revision.

In the case of RJ Import Roger Jaeger A.G. and RJ Import Bucureşti S.A. v. Romania,

The European Court of Human Rights (Third Section), sitting as a committee composed of:

Ján Šikuta, President,
Ineta Ziemele,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 11 October 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 19001/05) 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 companies, RJ Import Roger Jaeger A.G. registered in Switzerland (“the first applicant”) and RJ Import Bucureşti S.A. registered in Romania (“the second applicant”), on 17 May 2005.

The applicants were represented by Mr Martin Meyer, a lawyer practising in Strasbourg. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.

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 (former Article 29 § 3).

On 18 March 2010 the applicants requested the Court to hold a public hearing. The Court decided that no hearing on the admissibility and the merits of the case was required (Rule 59 § 3 of the Rules of Court).

In accordance with Protocol No. 14 to the Convention, the application was assigned to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant, RJ Import Roger Jaeger A.G., is a commercial company located in Herrliberg, Switzerland. The second applicant, RJ Import Bucureşti S.A., located in Bucharest, Romania, is a subsidiary company of the first applicant who ownes 51 % of its shares.

In 1997 the second applicant concluded with the State-owned company S.C. Craser S.A. (“Craser”) a purchasing contract for industrial equipment. The second applicant paid the price of the contract partly in money partly by buying a debt of the seller. By subsequent commercial transactions the creditor of the debt owed by the second applicant became the first applicant.

By a final judgment of 16 April 2002 the Bucharest Court of Appeal annulled the 1997 contract finding that it had been concluded in breach of the law. At an unspecified date the second applicant had returned the equipment to the seller but the latter refused to return the price received.

On 22 April 2004 the second applicant requested before the courts the reimbursement of the price paid according to the purchasing contract as well as the value of the investments subsequently incurred with respect to the equipment in question. On 17 November 2004 the Bucharest County Court obliged Craser to pay the second applicant 1,350,000 Swiss Francs as price of the contract, 35,994,375,000 Romanian Lei (ROL) as investments incurred and ROL 5,171,000 as court fees. The judgment became final on 2 December 2004 as it was not appealed against by the parties.

On 9 July 2004 the first and second applicants requested before the courts the opening of bankruptcy proceedings against Craser. By a judgment of the Dolj County Court of 3 November 2004 the bankruptcy proceedings were commenced. On 27 April 2005 the Craiova Court of Appeal decided by a final judgment to include both applicants on the list of creditors: the first applicant with the debt it had bought and the second applicant with the amounts awarded by the judgment of 17 November 2004. According to the information submitted by the parties these proceedings are still pending before the domestic courts.

Despite the applicants’ efforts, the judgment of 17 November 2004 remained non-enforced to date.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. 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).

The relevant domestic law concerning the bankruptcy proceedings, namely excerpts of the Law no. 64/1995 on the reorganisation and bankruptcy, is summed up in the Court’s judgment in the case of Moldoveanu v. Romania (no. 13386/02, 29 July 2008).

B. Parliamentary Assembly of the Council of Europe Resolution 1787 (2011) entitled: Implementation of the judgments of the European Court of Human Rights

On 26 January 2011 the Parliamentary Assembly of the Council of Europe adopted this Resolution by which it notes with grave concern the continuing existence, in some of the member states, of major systemic deficiencies which cause large numbers of repetitive findings of violations of the Convention. In this context the Assembly urged Romania to tackle with priority the problem of non-enforcement of final court decisions.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

The applicants complained of the non-enforcement of the final judgment in their favour and of the breach of their right to peaceful enjoyment of possessions. They relied on Article 1 of Protocol No. 1 to the Convention and in substance on Article 6 § 1 of the Convention, which read as follows in their relevant parts:

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.”

A. Admissibility

The Government raised two objections as to the admissibility of the application. On the one hand they contested the first applicant’s victim status and, on the other hand, they argued that the applicants had not exhausted the available domestic remedies with regard to their complaint.

1. Victim status

The Government submitted that the first applicant lacks victim status because it was not party to the domestic proceedings finalised with the 17 November 2004 judgment.

The applicants contested this argument and stated that the first applicant has victim status because it had bought the debt owed by the second applicant and was accepted as creditor together with the second applicant within the bankruptcy proceedings, as stated by the 27 April 2005 judgment of the Craiova Court of Appeal.

The Court reiterates that a person cannot complain about a violation of his or her rights in proceedings to which he or she was not a party, even if he or she was a shareholder and/or executive director of the company which was party to the proceedings (see, among other authorities, F. Santos Lda. and Fachadas v. Portugal (dec.), no. 49020/99, 19 September 2000, and Nosov v. Russia (dec.), no. 30877/02, 20 October 2005). The Court notes that in the present case solely the second applicant was party to the proceedings finalised by the 17 November 2004 judgment, of which the applicants complained about not being enforced by the authorities.

In view of the above, the Court allows the Government’s exception and considers that the application, in so far as it concerns the first applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4 of the Convention. Therefore, the Court will examine the current application only with respect to the second applicant.

2. Non-exhaustion of domestic remedies

The Government submitted that the applicants had not exhausted domestic remedies because the bankruptcy proceedings, in the course of which they were recognised as creditors, are still pending before the national courts.

The applicants contested this argument.

The Court notes that, as far as it concerns the second applicant, this exception is closely linked to the merits of the application. It will therefore deal with the objection in its examination of the merits below.

3. Conclusion

The Court notes that the complaint concerning the non-enforcement of the 17 November 2004 judgment with respect to the second applicant is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government submits that, once the second applicant had enlisted its debt arising from the 17 November 2004 judgment within the bankruptcy proceedings, the enforcement of the said judgment could be done only in the framework of these proceedings.

The second applicant contested this argument.

The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6 (see Hornsby v. Greece, no. 18357/91, § 40, 19 March 1997). The Court also recalls its extensive case-law concerning the non-enforcement or the delayed enforcement of final domestic judgments by the Romanian authorities (see, amongst many other cases, Tacea v. Romania, no. 746/02, 29 September 2005; Dragne and Others v. Romania, no. 78047/01, 7 April 2005; Orha v. Romania, no.1486/02, 12 October 2006).

The Court recalls that that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award, nor can the State, in such circumstances, justify its failure to enforce the judgment against a State enterprise with reference to the liquidation of the company (see Grigoryev and Kakaurova v. Russia, no. 13820/04, § 37, 12 April 2007; Moldoveanu v. Romania, no. 13386/02, § 35, 29 July 2008; Aurelia Popa v. Romania, no. 1690/05, § 24, 26 January 2010, and, mutatis mutandis, Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III).

The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, for example, Aurelia Popa, cited above, §§ 24-25; Moldoveanu, cited above, §§ 35, 36; Burdov, cited above, §§ 33 42, as well as Gerasimova v. Russia, no. 24669/02, §§ 14-22, 13 October 2005, and Gizzatova v. Russia, no. 5124/03, 13 January 2005, §§ 18-29).

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, in the present case, a different conclusion than the one adopted in the cases mentioned at paragraphs 27 and 28 above. It therefore finds that, by failing for years to comply with the enforceable judgment in the second applicant’s favour, the domestic authorities impaired the essence of its “right to a court” and prevented it from receiving the money it had legitimately expected to receive.

The foregoing considerations are sufficient to enable the Court to dismiss the Government’s objection as to the exhaustion of domestic remedies and to conclude that there has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 with respect to the second applicant.

II. 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.”

In the present case, the Court notes that on 18 September 2009, namely after the communication of the application to the Government but before the receipt of the latter’s observations, the applicants formulated their just satisfaction claims supported by various documents.

On 2 October 2009 the Court referred to its letter of 16 April 2009 by which it had informed the applicants of the communication of their application and reminded them that they had to await for the Government’s observations on the admissibility and merits of the application.

On 21 December 2009, upon receipt of the Government’s observations, the Court invited the applicants to submit their observations in reply together with their just satisfaction claims while drawing their attention to Article 60 of the Rules of Court which provides that the applicants must submit all just satisfaction claims within the time-limit fixed for the submission of their observations.

However, on 27 January 2010, in their reply to the Government’s observations, the applicants did not reiterate their submissions on just satisfaction nor did they unequivocally make a referral to their correspondence of 18 September 2009.

The Government noted that the applicants had made no claim for just satisfaction within the time allowed for that purpose by the Court in its letter of 21 December 2009 and invited it to make no award under this head.

The Court reiterates that it does not make any award by way of just satisfaction where quantified claims and the relevant documentation have not been submitted within the time-limit fixed for that purpose by Rule 60 § 1 of the Rules of Court, even if the applicant had indicated his claims at an earlier stage of the proceedings (see Willekens v. Belgium, no. 50859/99, § 27, 24 April 2003; Fadıl Yılmaz v. Turkey, no. 28171/02, §§ 24-27, 21 July 2005; Gourguenidze v. Georgia, no. 71678/01, § 81, 17 October 2006; Arsenovici v. Romania, no. 77210/01, §§ 53-55, 7 February 2008).

In view of the circumstances of the present case, the Court considers that the applicants failed to comply with their obligations under Rule 60 of the Rules of Court. Since no valid claim for just satisfaction has been made, the Court considers that there is no reason to award the applicants any amount in this respect.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Upholds the Government’s objection that the first applicant cannot claim to be a “victim” for the purposes of Article 34 of the Convention of a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1;

Joins to the merits the Government’s objection concerning the non exhaustion of domestic remedies and dismisses it;

Declares the application admissible with respect to the second applicant;

Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention with respect to the second applicant.

Done in English, and notified in writing on 3 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ján Šikuta Deputy Registrar President