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FOURTH
SECTION
CASE OF MOISEI v. MOLDOVA
(Application
no. 14914/03)
JUDGMENT
STRASBOURG
19
December 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Moisei v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges
and Mr T.L. Early, Section Registrar,
Having deliberated in
private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14914/03) 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, Ms Pelaghia Moisei (“the
applicant”), on 29 January 2003.
- The
applicant was represented by Mr Ştefan Urîtu,
from The Helsinki Committee for Human Rights in Moldova, a
non-governmental organisation based in Chişinău. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr A. Pârlog.
- The
applicant complained that the failure to enforce the judgment of 23
July 2001 violated her right to have her civil claims determined by a
court within a reasonable time, as guaranteed by Article 6 of the
Convention, and her right to peaceful enjoyment of her possessions,
as guaranteed by Article 1 of Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
8 October 2003 a Chamber of that Section decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant, Ms Pelaghia Moisei, is a Moldovan
national, who was born in 1921 and lives in the village of Recea.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
2000 the applicant lodged with the Străşeni
District Court a civil action against the Savings Bank and the
Government. She sought compensation in connection with her deposits
in the Savings Bank pursuant to the Parliament's decision of 29 July
1994 to revalue the savings of citizens in the Savings Bank in order
to compensate for losses caused by inflation.
- On
23 July 2001 the Straseni District Court found for the applicant and
ordered the Government to pay her 7,696.23 Moldovan lei (MDL),
(approximately 682 euros (EUR) at the time). No appeal was lodged and
the judgment became final and enforceable 15 days later.
- The
court issued an enforcement warrant which it sent directly to the
Bailiff for enforcement.
- On
1 November 2001 the applicant's representative lodged a written
request with the President of the Chişinău District Court
asking for the enforcement of the judgment of 23 July 2001. By a
letter of 15 November 2001 the President of that court
replied that the enforcement of the decision was impossible because
the Ministry of Finance did not have funds and advised the applicant
to address the Government, the Parliament and the President of
Moldova, because its own requests sent to these institutions remained
unheeded.
- On
28 March 2002 the applicant addressed the Ministry of Justice with a
request for its assistance in enforcing the judgment. The Ministry
forwarded the letter to the newly created Department for the
Enforcement of Judicial Decisions (“the Department”). In
a letter dated 2 July 2002, the Department informed the applicant
that the enforcement warrant in her name for the sum of MDL 7,696
had been forwarded to the Central Treasury of the Ministry of Finance
and added that the legislation did not provide for the forced
execution of judgments against the State Budget.
- On
19 September 2002 the applicant requested the assistance of the
Minister of Finance in enforcing the decision. In a letter of 8
October 2002, signed by the Vice-Minister of Finance, the applicant
was informed that the State Treasury, which was responsible for
enforcing judgments against the State, had not received an
enforcement warrant for the sum mentioned by the applicant. At the
same time, it had registered another warrant for the amount of
MDL 2,004. The applicant was further informed that the State
Budget for the year 2002 did not provide for expenditure related to
enforcement of her judgment and that therefore the judgment of
23 July 2001 could not be enforced. The applicant was advised to
wait for the adoption of the State Budget for the year 2003 which
might provide for such expenditure.
- The
Government submitted evidence of the fact that the Ministry of
Finance had transferred a lump sum to the Department on 29 April 2003
for the purpose of enforcing a list of enforcement warrants,
including the applicant's. The applicant received her money on 27 May
2003.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 III (extracts)).
THE LAW
- The
applicant complained that the failure to enforce the judgment of
23 July 2001 had violated her rights as guaranteed by Article 6
§ 1 and Article 1 of Protocol No. 1 to the Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time by a tribunal ....”
Article 1
of Protocol No. 1 reads as follows:
“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
applicant also complained that the non-enforcement of the judgment
had violated her rights guaranteed under Article 13 of the
Convention.
Article
13 reads 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.”
- The
applicant finally complained that the non-enforcement had violated
her rights guaranteed under Article 8 of the Convention.
Article
8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government submitted that the applicant had not informed the Court
about the developments in her case, namely that the judgment in her
favour had been enforced on 29 April 2003. They invited the Court to
declare her application inadmissible since it was manifestly ill
founded.
- The
applicant submitted that when the application had been lodged the
judgment had not been enforced for over a year. Moreover, at no point
had the authorities admitted a violation of her Convention rights and
she had not obtained any compensation for the delay in enforcement,
which was very long for an 81-year-old person.
- The
Court considers that the failure of the applicant to notify the Court
about the enforcement of the judgment after the lodging of her
application does not constitute an abuse of the right of individual
application within the meaning of Article 35 of the Convention,
having regard to the fact that the applicant did not claim the
payment of the original award but rather compensation resulting from
the failure to enforce.
- The
Government also submitted that since the award had been paid in full
the applicant could no longer claim to be a victim of a violation of
her Convention rights.
- The
Court notes that it has already dismissed a similar objection raised
by the respondent Government because “the payment ... did not
involve any acknowledgement of the violations alleged” (see,
e.g., Prodan v. Moldova, cited above, § 47). Moreover, no
compensation for delayed enforcement was paid.
- In
these circumstances, the Court considers that the applicant may claim
to be a victim of a violation of Article 6 § 1 of the Convention
and of Article 1 of Protocol No. 1 to the Convention.
- The
Court considers that the applicant's complaints under Article 6 § 1
and under Article 1 of Protocol No. 1 to the Convention, as well as
under Articles 8 and 13, raise questions of law which are
sufficiently serious that their determination should depend on an
examination of the merits, and no other grounds for declaring them
inadmissible have been established. The Court therefore declares
these complaints admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of these
complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF
PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the judgment of 23
July 2001 in her favour violated her rights under Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention.
- The
Government considered that no violation of those rights had taken
place in view of the full enforcement of the judgment within a
reasonable time.
- The
Court notes that the judgment of 23 July 2001 remained unenforced
until 27 May 2003, when the applicant received her money, that is for
22 months. The Court has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention
in numerous cases concerning delays in enforcing final judgments
(see, among other authorities, Prodan v. Moldova, cited above,
and Luntre and Others v. Moldova, nos. 2916/02, 21960/02,
21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02,
21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004).
Having
examined the material submitted to it, the Court notes that the file
does not contain any element which would allow it to reach a
different conclusion in the present case. In particular, the State
Treasury's claim that it had not received for enforcement the warrant
regarding the entire sum is contradicted by the letter from the
Department (see paragraph 11 above).
- Accordingly,
the Court finds, for the reasons given in the above-mentioned cases,
that the failure to enforce the judgment of 23 July 2001 within a
reasonable time constitutes a violation of Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 §
1 AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant further complained that she had no effective
remedies in respect of her complaints under Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
- The
Government argued that Article 13 was not applicable in the absence
of a violation of either Article 6 § 1 and Article
1 of Protocol No. 1 to the Convention. They added that the applicant
had not used all available domestic remedies in respect of her
complaint under Article 13, such as requesting the initiation of
administrative or criminal proceedings against the person responsible
for non-enforcement.
- The
Court observes that the applicant's complaints that the refusal to
enforce the judgment in her favour infringed her rights under Article
6 and Article 1 of Protocol No. 1 were undoubtedly arguable (see
paragraph 28 above). The applicant was therefore entitled to an
effective remedy within the meaning of Article 13. Accordingly, the
Court will examine whether such a remedy was available to the
applicant.
- The
Court notes that the judgment in favour of the applicant was enforced
22 months after it had been adopted. The debtor in this case was a
State body. According to a letter from the enforcement authority of
2 July 2002, “the legislation of the Republic of Moldova
does not provide for the forcible enforcement of judicial decisions
against the State Budget”. In addition, even the domestic court
addressed various State institutions with a request to ensure the
enforcement, but to no avail (see paragraph 10 above). The Court
concludes that the remedies referred to by the Government (see
paragraph 30 above) were not effective since in the absence of
budgetary provisions for the purposes of enforcement no particular
person could be held responsible for the failure to enforce.
- It
is thus apparent that the applicant had no remedy to either prevent
the continuation of the violation of her rights guaranteed under
Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention
or to obtain compensation. There has accordingly been a violation of
Article 13 taken together with those Articles (Romashov v.
Ukraine, no. 67534/01, § 47, 27 July 2004, and Voytenko
v. Ukraine, no. 18966/02, § 43, 29 June
2004).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant finally complained that the delayed enforcement of the
judgment had violated her rights guaranteed under Article 8 of the
Convention.
- The
Court considers that this complaint raises essentially the same
issues as those already dealt with under Article 6 and Article 1 of
Protocol No. 1. It will accordingly not examine this complaint
separately.
V. 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.”
A. Damage
- The
applicant claimed EUR 10,217 for damage caused by the delayed
enforcement of the judgment of 23 July 2001. She argued that the
money awarded to her had constituted her entire life savings on which
she had hoped to live upon retiring. Accordingly, she had suffered
immensely when her savings were lost and when she could not obtain
for two years the meagre compensation awarded by the State. She
argued that, by analogy with the rules applicable in the case of
delays in paying salaries, she should obtain compensation of 5% of
the sum owed to her for each day of delay.
- Moreover,
the applicant argued that she had been humiliated and treated
disdainfully during the years when she had had to travel to Chişinău
from her village to prove to the public servants that she had no
resources to lead a decent life.
- The
Government considered that the amount claimed was excessive. They
rejected the applicability of labour legislation principles and in
particular the payment of compensation in the amount of 5% per day
since the judgment had not dealt with a labour dispute. They further
contested the amount claimed for non-pecuniary damage, citing the
Court's case-law on the issue of non-enforcement.
- The
Court considers that the applicant must have suffered pecuniary
damage as a result of the non-execution of the judgment in her favour
within a reasonable time. The Court awards the applicant EUR 192 in
this respect.
- The
Court also considers that the applicant must have been caused a
certain amount of stress and frustration as a result of the
non-enforcement of the judgment, the more so given her advanced age
and the fact that the sum awarded was an essential source of revenue
for her. It awards the applicant EUR 500 for non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 900 for the costs and
expenses incurred before the Court. Her representative submitted a
copy of its decision of 30 March 2004 according to which the usual
representation fee was fixed at the equivalent of USD 900. The
representative added that the amount claimed would not constitute a
profit for the organisation but serve to cover partly its costs in
representing applicants.
- The
Government did not agree with the amount claimed, stating that the
applicant had failed to prove the alleged representation expenses.
- In
the particular circumstances of the present case the Court awards the
applicant EUR 600 for costs and expenses incurred.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the late
enforcement of the judgment of 23 July 2001;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the same delayed
enforcement;
4. Holds that there has been a violation of Article 13 of the
Convention in conjunction with Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention;
5. Holds that it is not necessary to examine separately the
complaint under Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final according to Article 44 § 2
of the Convention, EUR 192 (one hundred and ninety two euros) for
pecuniary damage, EUR 500 (five hundred euros) for non-pecuniary
damage and EUR 600 (six hundred euros) for costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T. L. Early Nicolas Bratza
Registrar President
