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FOURTH
SECTION
CASE OF
AVRAMENKO v. MOLDOVA
(Application
no. 29808/02)
JUDGMENT
STRASBOURG
6
February 2007
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 Avramenko 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 K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29808/02) 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 Valeriu Avramenko (“the
applicant”) on 11 June 2002.
- The
applicant was represented by Mr V. Nagacevschi, from “Lawyers
for Human Rights”, 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
26 June 2002 violated his right to have his civil rights
determined by a court within a reasonable time, as guaranteed by
Article 6 of the Convention, and his right to peaceful enjoyment of
his possessions, as guaranteed by Article 1 of Protocol No. 1 to
the Convention. He also complained about the examination of his case
in his absence by the courts, contrary to his rights guaranteed under
Article 6 of the Convention.
- The
application was allocated to the Fourth Section of the Court. On
24 September 2004 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, Mr Valeriu Avramenko, is a Moldovan
national, who was born in 1947 and lives in Bălţi.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
1. The main events and court proceedings
- In
May 1998 the Ministry of Privatisation and of State Property
published its decision to sell shares in a State-owned transport
company in Bălţi. An auction was announced for that
purpose. The applicant participated in the auction and, through a
broker, bought 26.033% of the company’s shares for 180,698.68
Moldovan lei (MDL) (approximately 34,484 euros (EUR)).
- The
Ministry of Transport and Telecommunications challenged in court the
results of the auction, claiming that the correct procedure had not
been followed (in particular, the name and address of the State
company had been incorrectly presented, which resulted in a low
public interest and low share prices).
- On
24 July 1998 the Economic Court of Moldova annulled the decision of
the Ministry of Privatisation and of State Property to offer the
relevant shares at an auction.
- The
applicant unsuccessfully appealed to the Appeal Chamber of the
Economic Court and the Supreme Court of Justice. By its final
judgment of 10 February 1999 the Supreme Court of Justice
rejected his appeal, finding that he had no standing in those
proceedings.
- The
Ministry of Privatisation and of State Property therefore initiated
court proceedings to annul the purchase of shares by the applicant at
the auction. On 11 April 2001 the Bălţi District Court
accepted the Ministry’s claim and annulled the purchase. The
applicant was present.
- On
3 July 2001 the Bălţi Regional Court rejected his appeal.
The Regional Court examined the case in his absence, finding that his
request for another adjournment based on medical grounds had not been
substantiated since he was being treated on an out-patient basis and
could thus have appeared at the hearing.
- On
7 March 2002 the Court of Appeal rejected his appeal in cassation and
upheld the judgment of the Bălţi District Court. The
applicant was present.
- The
applicant asked the Prosecutor General to initiate annulment
proceedings for the quashing of all the judgments adopted earlier. On
an unspecified date the Prosecutor General initiated such proceedings
before the Supreme Court of Justice.
- On
26 June 2002 the Supreme Court of Justice rejected the Prosecutor
General’s appeal but added to the judgment of the Bălţi
District Court of 3 July 2001 the obligation to return to the
applicant MDL 180,698.68 (approximately EUR 13,411 at the time),
representing the sum of money he had paid for the shares. That
judgment was final and enforceable.
- The
applicant obtained a warrant to enforce the judgment which was sent
to the Decisions Enforcement Department of the Ministry of Justice
(“the Department”).
- On
22 October 2002 he complained to the Department about its failure to
enforce the judgment. On 13 November 2002 he received an answer from
the bailiff who informed him that the Ministry of Finance, which was
responsible for returning the applicant’s money, had refused to
pay and that the judgment could not be enforced.
- The
applicant complained to various State officials (the President, the
Speaker of the Parliament, the Prime Minister, the Ministry of
Justice, the Ministry of Finance, etc.) requesting enforcement of the
judgment in his favour. He was informed that it was impossible for
the Ministry of Finances to make the payment, one reason being the
Government decision no. 59 of 19 January 1998, which prohibited
the enforcement of judgments against the Ministry of Finance.
- The
judgment of 26 June 2002 was enforced on 18 March 2004.
2. Proceedings concerning compensation for damage
- On
3 June 2002 the applicant initiated court proceedings claiming
compensation for pecuniary and non-pecuniary damage caused to him by
the failure to enforce the final judgment, including the effects of
inflation on the real value of the award and lost profits as a result
of his inability to use his money for four years.
- On
13 November 2002 the Centru District Court partly accepted the
applicant’s claims and awarded him MDL 220,085. That judgment
was upheld by the Chişinău Regional Court on 3 March 2003.
- On
20 May 2003 the Chişinău Court of Appeal quashed the lower
courts’ judgments. It found that damages could only be sought
if the debtor was responsible for intentionally not paying the debt.
Since it was unclear which State authority should have repaid the
debt and, accordingly, whether there had been any intentional failure
to enforce, the claim for damages could only be examined after the
judgment had been enforced.
- On
29 April 2004 the Bălţi Regional Court partly accepted the
applicant’s claims and awarded him MDL 285,503 (approximately
EUR 20,272) in compensation for the effects of inflation on the
value of the original award in his favour. That decision was upheld
by the Bălţi Court of Appeal on 5 October 2004. The
decision was final and enforceable.
3. Revision of the decision of 29 April 2004
- On
3 January 2005 the Ministry of Finance lodged a request for the
revision of the judgment of 29 April 2004. On 5 April 2005 the Bălţi
Court of Appeal rejected that request as unfounded.
- On
12 October 2005 the Supreme Court of Justice quashed the decisions of
5 October 2004 and 5 April 2005 and ordered a re-hearing of the case.
- On
9 February 2006 the Bălţi Court of Appeal quashed the
decision of 29 April 2004 and awarded the applicant MDL 180,698
(approximately EUR 11,678) in compensation for the effects of
inflation on his original award. That decision was final.
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 under Article 6 § 1 because the Bălţi
Regional Court had examined the case in his absence on 3 July 2001
and because the Economic Court had examined the case without allowing
him to make submissions in 1998-1999. He also complained of a
violation of the same article because the Prosecutor General had
requested the annulment of a final judgment.
- He
also complained under Article 6 § 1 and Article 1 of Protocol
No. 1 to the Convention about the failure to enforce the
judgment of 26 June 2002.
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 finally complained under Article 13 of the Convention taken
together with the above Articles.
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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. Complaint under Article 6 § 1 of the Convention
regarding the 1998 and 2001 proceedings and complaint under Article
13 of the Convention
- The
applicant complained about the failure of the courts to allow him to
intervene in the proceedings which ended with the judgment of
10 February 1999 (see paragraph 10 above).
- The
Government have not commented.
- The
Court notes that the first complaint relates to proceedings which
ended with a final judgment of 10 February 1999 and that this
application was lodged with the Court on 11 June 2002. It follows
that this complaint was introduced outside the
time-limit set by Article 35 § 1 of the Convention and must be
rejected as inadmissible pursuant to Article 35 § 4 of the
Convention.
- The
applicant also complained about the examination of his appeal by the
Bălţi Regional Court on 3 July 2001 in his absence.
- The
Court notes that he was present at the first and third-instance court
hearings and had not submitted to the second-instance court a valid
reason for his absence (see paragraph 12 above). It therefore
considers that the complaint is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and must be
rejected pursuant to Article 35 § 4.
- The
applicant complained about the quashing of a final judgment by the
Supreme Court of Justice on 26 June 2002 (see paragraph 14 above).
- The
Court considers that the applicant cannot complain about any
violation of his rights as a result of the quashing since it was
initiated at his own request and resulted in an improvement of his
situation (see paragraph 15 above). It therefore considers that
the complaint is manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and must be rejected pursuant to
Article 35 § 4.
- The
Court further notes that the applicant initially complained under
Article 13 of the Convention. However, by letter of 28 June 2006 he
withdrew that complaint.
- In
view of the above, the Court will not examine this complaint.
B. Complaint under Article 6 and Article 1 of Protocol
No. 1 to the Convention regarding the belated enforcement of a
judgment
- The
Government submitted that since the award made on 26 June 2002 in the
applicant’s favour had been paid on 18 March 2004 the applicant
could no longer claim to be a victim of a violation of his Convention
rights. In addition, the applicant had the right to claim
compensation for the effects of inflation on the original award.
- The
applicant disagreed, stating that he retained his victim status.
- 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, apart
from mitigating the effects of inflation on the value of the award
(see paragraph 26 above), even though the applicant had initiated
court proceedings for that purpose (see paragraphs 20-23 above).
- 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
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 26
June 2002 in his favour had violated his rights under Article 6 §
1 and Article 1 of Protocol No. 1 to the Convention.
- The
Government submitted that the applicant’s rights had not been
violated in view of the fact that he had received the entire amount
awarded to him.
- The
Court notes that the judgment remained unenforced for approximately
21 months. It recalls that it 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, it notes
that the award was made against the State itself, in the form of the
Ministry of Finance, and that the reason for the delay in enforcing,
as explained by the enforcement authority, was a Government decision
prohibiting enforcement against that Ministry (see paragraph 18
above).
- Accordingly,
the Court finds, for the reasons given in the cases cited above, that
the failure to enforce the judgment of 26 June 2002 within a
reasonable time constitutes a violation of Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
III. 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 referred to his other application lodged with the Court in
respect of the revision of the decision of 29 April 2004 (see
paragraphs 24-26 above). He asked the Court to examine his claims for
compensation in respect of the present application after it had
examined the other one.
- The
Government submitted that the judgment in the applicant’s
favour had been enforced without delay and that he could not claim
compensation. It also referred to the re-opening of the proceedings
as a result of the annulment of the decision of 29 April 2004.
- In
the light of the re-opening of the proceedings following the decision
of the Bălţi Court of Appeal of 9 February 2006, the Court
considers that the issue of the application of Article 41 of the
Convention in respect of compensation for damage caused is not ready
for decision. Consequently, it decides to reserve it.
B. Costs and expenses
- The
applicant also claimed EUR 4,850 for costs and
expenses incurred before the Court.
- In
the particular circumstances of the present case, the Court awards
the applicant EUR 600 for costs and expenses.
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 admissible the complaints under Article
6 § 1 and Article 1 of Protocol No. 1 to the Convention
regarding the late enforcement of the judgment of 26 June 2002 and
the remainder of the complaints inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the late
enforcement of the judgment of 26 June 2002;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the same delayed
enforcement;
- 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 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Holds, that the question of the application of
Article 41 of the Convention in respect of pecuniary and
non-pecuniary damage is not ready for decision;
accordingly,
(a) reserves
it in that respect;
(b) invites
the Government and the applicant to keep the Court informed within
six months of the date of this judgment, of any developments in the
re-opened proceedings or of any agreement they might reach;
(c) reserves
the further procedure and delegates to the President of the Chamber
power to fix the same if need be;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T. L. Early Nicolas Bratza
Registrar President
