CASE OF LIMA S.R.L. v. THE REPUBLIC OF MOLDOVA
(Application no. 46256/10)
19 January 2021
This judgment is final but it may be subject to editorial revision.
In the case of Lima S.R.L. v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
the application (no. 46256/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan company, Lima S.R.L. (“the applicant”), on 3 August 2010;
the decision to give notice to the Moldovan Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 15 December 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the failure of the State to enforce a final judgment in favour of the applicant company within a reasonable time.
2. The applicant is a company incorporated in Moldova. It was represented before the Court by Ms S. Bodişteanu, a lawyer practising in Chișinău.
3. The Government were represented by their Agent, Mr O. Rotari.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. Following a contractual dispute with a third company, the applicant company obtained, on 10 December 2007, a final judgment obliging the other company to pay it 153,612.44 Moldovan lei (MDL) (the equivalent of approximately 9,300 Euro (EUR)).
6. In spite of numerous requests made by the applicant company before the authority responsible for the enforcement of judicial decisions, no measures were taken to have the judgment enforced.
7. After the enactment of Law No. 87 (see paragraph 11 below), the applicant company initiated proceedings seeking the acknowledgement of a breach of its right to have the judgment of 10 December 2007 enforced within a reasonable time due to the failure of State authorities to take measures for its enforcement. The applicant also claimed compensation for the pecuniary damage suffered. In particular it claimed the amount representing the judgment debt and default interest calculated from that amount.
8. On 19 July 2012 the Rîşcani District Court partly upheld the applicant’s action and found the State responsible for the non-enforcement of the impugned judgment. The court ordered the State to pay the applicant MDL 153,612 representing the amount of the judgment debt but dismissed the applicant’s claim for default interest.
9. On 15 November 2012 the Chişinău Court of Appeal partly upheld the appeal on points of law lodged by the State and quashed the order to pay to the applicant the judgment debt. It considered that since the defendant in the enforcement proceedings was a private company, it was not for the State to pay the judgment debt. The Court of Appeal upheld the lower court’s finding of a breach of the applicant’s right to have the judgment enforced in a timely manner.
10. On 20 July 2015 following criminal complaints lodged by the applicant against the defendant company, the latter complied with the judgment of 10 December 2007 and paid the applicant MDL 153,454 (the equivalent of EUR 7,530 at the time).
RELEVANT LEGAL FRAMEWORK
11. According to Law No. 87 of 21 April 2011, anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and to claim compensation.
According to section 1 of the law, the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law.
According to section 4 of the law the courts are obliged to deal with applications lodged under the law within three months.
Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant.
Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants.
Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint..
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
12. The applicant company complained about the failure by the domestic authorities to enforce the judgment of 10 December 2007 within a reasonable time. The relevant provisions of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 read as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time.”
Article 1 of Protocol No. 1
“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 ...”
14. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).
15. In the instant case it is true that the domestic courts held that there had been a violation of the applicant’s right to have the judgment of 10 December 2007 enforced within a reasonable time. That said, the Court finds that the question of the applicant’s victim status as regards the redress for the violation of its rights is inextricably linked to the merits of the complaint. Therefore, it considers that both questions should be joined and examined together.
16. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
17. The Government argued that the applicant company lost its victim status after the domestic courts ruled on its Law No. 87 action.
18. The applicants disagreed.
19. The Court recalls that the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of a case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The State’s responsibility for enforcement of a judgment against a private person extends no further than the involvement of State bodies in the enforcement procedures (see Fuklev v. Ukraine, no. 71186/01, § 67 and §§ 90-11, 7 June 2005). The Court’s only task is to examine whether the measures taken by the authorities were adequate and sufficient. In cases such as the present one, where the debtor is a private person, the State has to act diligently in order to assist a creditor in execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).
20. The Court notes that the domestic courts acknowledged the breach of the applicant company’s right to have the judgment of 10 December 2007 enforced within a reasonable time due to the inaction of the authorities. The Court sees no reason to disagree with that finding. Nevertheless, after making that finding, the domestic courts failed to award the applicant any compensation. Indeed, despite finding the fault of the authorities for the non-enforcement of the final judgment in favour of the applicant, the Supreme Court rejected the applicant’s claim for compensation of the pecuniary damage suffered. The judgment of 10 December 2007 was eventually executed for reasons unrelated with the proceedings under Law No. 87 but the applicant never recovered the default interest due to its late execution.
21. Moreover, the Court has frequently found violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to the one in the present case (see, among other authorities, Fuklev v. Ukraine, cited above and Spiridonov v. the Republic of Moldova [CTE], no. 41541/13, 23 June 2020).
22. Having examined all the material submitted to it, the Court considers that the Government have not put forward any argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the failure by the State authorities to take appropriate measures in order to have the judgment in favour of the applicant company enforced constitutes a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.
23. In conjunction with the above complaint, the applicant company complained that due to the fact that the enforcement authority had failed to inform it in due time about its actions, its right to an effective remedy had been breached. It relied on Article 13 of the Convention, which provides as follows:
“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.”
24. Having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, the Court considers that it is not necessary to examine either the admissibility or the merits of the complaint under Article 14 (see Kaos‑GL v. Turkey, 450 no. 4982/07, § 65, 22 November 2016; Ghiulfer Predescu v. Romania, 451 no. 29751/09, § 67, 27 June 2017; Political Party “Patria” and Others v. the Republic of Moldova, nos. 5113/15 and 14 others, § 41, 4 August 2020).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
25. 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.”
26. The applicant company claimed 9,080.43 euros (EUR) in respect of pecuniary damage. It provided a detailed calculation of the default interest from the amount of the judgment debt which the domestic courts refused to award to it.
27. The Government contested the calculation made by the applicant and asked the Court to dismiss the claim.
28. Taking into account the circumstances of the case under consideration and making its own assessment, the Court awards the applicant company a total amount of EUR 5,000 in respect of pecuniary damage.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning Article 6 § 1 and Article 1 of Protocol No. 1 admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
4. Holds that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros) plus any tax that may be chargeable, in respect of pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President