European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF MIHAILOV v. THE REPUBLIC OF MOLDOVA

(Application no. 53209/12)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

29 June 2021

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

In the case of Mihailov v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 53209/12) 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 national, Mr Ion Mihailov (“the applicant”), on 26 July 2012;

the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning Articles 6 § 1, 13 and 1 of Protocol No. 1;

the parties’ observations;

Having deliberated in private on 8 June 2021,

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

INTRODUCTION

1.  The case concerns the failure of the State to enforce a final judicial decision in favour of the applicant within a reasonable time.

THE FACTS

2.  The applicant was born in 1949 and lives in Chișinău. He was represented by Mr A. Bivol, a lawyer practising in Chișinău.

3.  The Government were represented first by their Agent, Mr M. Gurin and later by their Agent ad-interim Ms R. Revencu.

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

5.  Following a dispute between the applicant and the Botanica Office of the Department of Execution of Judicial Decisions (the Botanica Office), on 21 April 2008 the applicant obtained a final judgment of the Botanica District Court ordering the latter to pay him 86,317.04 Moldovan lei (MDL) (the equivalent of 5,235 Euro (EUR).

6.  On 12 June 2008 and 10 July 2008, the applicant applied to the Botanica Office for the enforcement of the above judgment. However, the Botanica Office refused to comply with the judgment and returned to the applicant the writ of enforcement on the ground that the court had allegedly failed to indicate data concerning the creditor and the debtor in the writ of enforcement. The applicant challenged the refusal and his action was upheld by the Botanica District Court on 16 September 2008. The court considered unfounded the refusal of the Botanica Office to accept the writ of enforcement.

7.  On 25 November 2008 the applicant applied again to the Botanica Office for the enforcement of the judgment of 21 April 2008. The Botanica Office returned again the writ to him on the ground that it did not have territorial competence to deal with it.

8.  In the meantime, the applicant complained to the Court about the non-enforcement of the judgment of 21 April 2008. However, on an unspecified date the Court invited the applicant to exhaust a new remedy which had been enacted in Moldova and declared his application inadmissible.

9.  On 25 October 2011 the applicant initiated proceedings against the Ministry of Justice in accordance with the provisions of Law No. 87 (see paragraph 12 below). He requested pecuniary damage in the amount of MDL 131,548 and non-pecuniary damage of MDL 30,000.

10.  On 13 June 2012 the Chișinău Court of Appeal upheld the applicant’s action. The court noted that the judgment of 21 April 2008 had not been enforced for a period exceeding four years and therefore found a breach of the applicant’s right to have it enforced within a reasonable time. The court awarded the applicant MDL 6,000 (the equivalent of EUR 399) for non-pecuniary damage but dismissed his claim for pecuniary damage because it considered that there was no causal link between the breach found and the pecuniary damage claimed by the applicant.

11.  The judgment of 21 April 2008 has not been enforced to date.

RELEVANT LEGAL FRAMEWORK

12.  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.

THE LAW

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

13.  The applicant complained about the failure by the domestic authorities to enforce the judgment of 25 May 2009 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:

Article 6

“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...”

A.    Admissibility

14.  The Government submitted that the applicant had lost his victim status as a result of the domestic courts’ rulings in the proceedings initiated by him under Law No. 87.

15.  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).

16.  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 21 April 2008 enforced within a reasonable time and awarded him non‑pecuniary damage in an amount of EUR 399. 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.

17.  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.

B.    Merits

18.  The Government argued that the applicant lost his victim status after the domestic courts ruled on his Law No. 87 action.

19.  The applicant disagreed.

20.  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).

21.  The Court notes that the domestic courts acknowledged the breach of the applicant’s right to have the judgment of 21 April 2008 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 for the pecuniary damage suffered. Indeed, despite finding the fault of the authorities for the non-enforcement of the final judgment in favour of the applicant, the Court of Appeal only awarded him compensation for non-pecuniary damage and rejected his claim concerning the pecuniary damage suffered. The judgment of 21 April 2008 was not enforced to date and the applicant never recovered the money awarded to him by that judgment.

22.  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).

23.  Having examined all the material submitted to it, the Court considers that the applicant did not lose his victim status and 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 enforced constitutes a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

II.      ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

24.  In conjunction with the above, the applicant complained that his right to an effective remedy had been breached. He 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.”

25.  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 13 (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

26.  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

27.  The applicant claimed 11,724 euros (EUR) in respect of pecuniary damage. He provided a detailed calculation of the default interest from the amount of the judgment debt which the domestic courts refused to award to him and a calculation of the loss suffered due to inflation until 2016. He also claimed EUR 4,800 for non-pecuniary damage

28.  The Government contested the applicant’s claims and asked the Court to reject them.

29.  Considering the circumstances of the present case and making its own assessment, the Court awards the applicant EUR 9,000 for pecuniary damage and EUR 1,200 for non-pecuniary damage.

B.    Costs and expenses

30.  The applicant also claimed EUR 1,635 for the costs and expenses he had incurred before the Court. He submitted details concerning the amount claimed.

31.  The Government objected and asked the Court to dismiss the claim.

32.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the applicant EUR 800 for costs and expenses.

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;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  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;

6.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_2}

   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President