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FOURTH
SECTION
CASE OF
CURĂRARU v. MOLDOVA
(Application
no. 34322/02)
JUDGMENT
STRASBOURG
9
October 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 Curăraru 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 18 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34322/02) 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 two Moldovan nationals Mr Vasile Curăraru
(“the first applicant”) and Mrs Ludmila Curăraru
(“the second applicant”), on 11 September 2002.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicants complained that the failure to enforce the final judgment
of 23 April 1999 in their favour had violated their right to have
their civil rights determined by a court within a reasonable time, as
guaranteed by Article 6 of the Convention, and their right to
peaceful enjoyment of their possessions, as guaranteed by Article 1
of Protocol No. 1 to the Convention. They also complained about the
fairness of the proceedings for their dismissal.
- The
application was allocated to the Fourth Section of the Court. On
23 June 2006 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1936 and 1940 respectively
and live in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Litigation in respect of the right to accommodation
- On
27 January 1994 the room in which the applicants lived was declared
uninhabitable. A report issued on 5 December 1996 by the Epidemiology
and Hygiene Centre of the Ministry of Health confirmed that water
leaked through the damaged roof into the room and caused damp. It
requested the local authorities to respond appropriately to the
situation.
- In 1999 the applicants initiated court proceedings. On
23 April 1999 the Centru District Court adopted a judgment in the
applicants' favour (“the 1999 judgment”), ordering the
Chişinău municipality to allocate them “accommodation
in accordance with the number of family members”. No appeal was
lodged and the judgment became final 15 days later.
- On
11 May 1999 the applicants submitted the enforcement warrant to the
bailiff, who did not enforce it. The municipality responded to all
the requests of the bailiff and of the applicants by stating that it
could not enforce the judgment in view of the lack of available
apartments. It was fined several times (the equivalent of 120 euros
(EUR), it is unclear whether the fines were paid) but the judgment
was not enforced.
- In
2002 the Decisions Enforcement Department (“the Department”)
requested a court to return the enforcement warrant to the applicants
without enforcement. On 28 September 2002 the Centru District Court
accepted that request. On 28 September 2004 the Court of Appeal
quashed that decision because the applicants had not been informed of
it. The bailiff's request was remitted for a new examination and on
22 December 2004 it was rejected by the Centru District Court as
unfounded. That decision was upheld by the Chişinău Court
of Appeal on 16 March 2005.
- In
2003 the applicants requested a court to set a time-limit for the
enforcement of the 1999 judgment. On 16 July 2003 the Centru District
Court set a two-month time-limit but no enforcement followed.
- Also
in 2003 the applicants requested a court to change the means of
enforcing the 1999 judgment by ordering the Chişinău
municipality to pay them the price of a two-room apartment or to
register their title to such an apartment in one of the newly built
houses belonging to the State and to compensate them for the damage
caused by the non-enforcement. On 28 November 2003 the Centru
District Court rejected that request, finding that such requests
could only be examined as part of separate proceedings. On 17 March
2004 the Chişinău Court of Appeal rejected an appeal by the
applicants.
- The
applicants initiated separate proceedings asking for compensation for
damage caused by the non-enforcement and for registration in the land
register of their title to a two-room apartment. In two judgments of
16 December 2004 the Centru District Court rejected both requests as
unfounded. These judgments were upheld by the Chişinău
Court of Appeal on 26 April 2005. Both courts exempted the applicants
from paying the court fees on account of their difficult financial
situation. The applicants appealed and asked for an exemption from
the payment of court fees for their appeal, in view of their
difficult financial situation. They also claimed that they had paid
the major part of the price of the apartment (9,550 Soviet roubles)
at the beginning of the 1990s.
- By
a letter of 11 May 2005 the Supreme Court of Justice informed the
applicants that their appeal could not be examined because it was
handwritten and the court fees had not been paid. The court informed
the applicants that no exemption from payment because of their
difficult financial situation was possible. The applicants did not
pay and the case was dismissed for failure to pay the court fees.
- On 11 October 2005 the Chişinău municipality
allocated two-room apartments to I.F., R.M., S.I. and V.N., who had
the right to accommodation on the basis of court orders of 3 April
2000, 30 June 2003 and 29 September 2004 respectively (two of the
above-mentioned received the court orders on the same day). The
applicants submitted a request to be allocated accommodation on a
priority basis since the judgment in their favour had been adopted in
1999, but it was not examined. The applicants challenged the failure
to examine their request in court.
- On
24 November 2005 the Court of Appeal quashed the municipality's
decision and ordered a re-examination of the applicants' request and
the allocation of a two-room apartment to them.
- On 22 February 2006 the Supreme Court of Justice
quashed that judgment and ordered a rehearing because the
municipality had not been present when the Court of Appeal adopted
its judgment. On 12 May 2006 the Chişinău Court of Appeal
rejected the applicants' claims. On 12 July 2006 the Supreme Court of
Justice upheld that judgment, finding that the other persons to whom
the applicants referred had received apartments clearly exceeding the
size of the apartment to which the applicants were entitled.
Accordingly, those apartments could not have been allocated to the
applicants. That judgment was final.
- In parallel proceedings the Department decided, on 1
September 2005, to freeze the procedure for distributing apartments
in apartment blocks built by the municipality and certain private
businesses, pending enforcement of several court judgments, including
the final judgment in favour of the applicants. On 18 October 2005
the Centru District Court partly quashed that decision. On 15
December 2005 the Chişinău Court of Appeal quashed the
Department's decision of 1 September 2005. The first applicant
asked for the reopening of the proceedings, but on 30 March 2006 the
Chişinău Court of Appeal rejected that request as
unfounded. That decision was upheld by the Supreme Court of Justice
on 28 June 2006.
- According to a document issued on 11 January 2007 by
the National Bureau of Statistics, more than a thousand new
apartments were made available in the city of Chişinău each
year during the period 1999-2006. The document did not specify the
proportion of State-owned apartments in the above number.
- The
judgment of 23 April 1999 has not been enforced to date.
2. Litigation in respect of the applicants' dismissal from their
jobs
- In two separate actions, the applicants complained
that they had been unlawfully dismissed from their jobs.
- The
first applicant's claim was initially rejected by a judgment of the
Centru District Court of 12 November 1998, but was allowed on appeal
by the Court of Appeal on 17 June 1999. The Prosecutor-General filed
a request for the annulment of the latter judgment. On 10 September
1999 the Supreme Court of Justice accepted that request and quashed
the Court of Appeal's judgment, while upholding the judgment of 12
November 1998.
- The second applicant's claim, filed in January 2001,
was granted on 11 June 2002. In a letter of 9 March 2004 she
complained about the excessive length of those proceedings.
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
applicants complained that their rights as guaranteed under Article 6
§ 1 of the Convention and under Article 1 of Protocol No. 1
to the Convention had been violated as a result of the failure to
enforce the final judgment in their favour. They also complained of a
number of violations of Article 6 § 1 in the course of the
proceedings for their dismissal.
Article
6 § 1 of the Convention, in so far as relevant, provides:
“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 to the Convention provides:
“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.”
I. ADMISSIBILITY
The Government's preliminary objection
- The
Government submitted that the applicants' complaints regarding their
dismissal from their jobs (see paragraphs 21-23 above) had not been
lodged with the Court within six months of the date of the final
court judgment in each case. They asked the Court to reject these
complaints as out of time.
- The
applicants did not comment.
- The
Court reiterates that, under Article 35 § 1 of the Convention,
it may only deal with a matter if it has been presented within a
period of six months from the date on which the final decision was
taken (see, for example, Meriakri v. Moldova (dec.), no.
53487/99, 6 May 2003). It notes that the first set of
proceedings ended on 10 September 1999, while this application was
lodged on 11 September 2002. While the second set of proceedings
ended on 11 June 2002, the applicants complained to the Court about
their length only on 9 March 2004.
- It follows that the complaints regarding these two
sets of proceedings were introduced out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of
the Convention.
- The
Court considers that the applicants' complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention
relating to the non-enforcement of the final judgment of 23 April
1999 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 the complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicants complained that the non-enforcement of the final judgment
in their favour had violated their rights under Article 6 § 1 of
the Convention and under Article 1 of Protocol No. 1 to the
Convention.
- The
Government submitted that the Chişinău municipality had
been faced with a difficult situation as a result of the failure to
provide means in the State budget for the period 1997-2002 for the
construction of new apartments. They promised that the judgment in
the applicants' favour would be enforced swiftly.
- The Court has already found, in cases similar to the
present one where apartments owned by the State are given to persons
on the basis of “social tenancy agreements”, that “a
'claim' – even concerning a particular social benefit –
can constitute a 'possession' within the meaning of Article 1 of
Protocol No. 1 if it is sufficiently established to be enforceable”
(see Shpakovskiy v. Russia, no. 41307/02, § 33,
7 July 2005; Malinovskiy v. Russia, no. 41302/02,
§§ 43 and 44, ECHR 2005 ... (extracts) and
Lozan and Others v. Moldova, no. 20567/02,
§ 39, 10 October 2006).
- The
Court reiterates that it is not open to a State authority to cite
lack of funds or available alternative accommodation as an excuse for
not honouring a judgment. Admittedly, a delay in the execution of a
judgment may be justified in certain circumstances. But the delay
must not be such as to impair the essence of the right protected
under Article 6 § 1 of the Convention (see Immobiliare
Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V; and
Prodan, cited above, § 53). It follows that the
Government's argument that for more than eight years the Chişinău
municipality could not find the means to enforce the judgment must be
dismissed.
- 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, cited above, and Lupacescu
and Others v. Moldova, nos. 3417/02, 5994/02, 28365/02,
5742/03, 8693/03, 31976/03, 13681/03, and 32759/03, 21 March 2006).
- Accordingly, the Court finds, for the reasons given in
those cases, that the delay in enforcing the judgment of 23 April
1999 constitutes a violation of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION
WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants also complained that they had been discriminated against
as regards the enforcement of the final judgment in their favour.
They referred to the distribution of apartments to persons who had
obtained final judgments after their own had become final (see
paragraphs 15-19 above).
- The
Court finds that there is nothing in the materials before it which
indicates that the applicants were victims of discriminatory
treatment in the allocation of apartments (see paragraph 17 above).
- Accordingly,
the Court concludes that this complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention and must be rejected under Article 35 § 4.
IV. 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
applicants claimed 298,530 Moldovan lei (MDL) (the equivalent of EUR
17,863 at the time), EUR 165,000 and 490,000 United States dollars
(USD) for both pecuniary and non-pecuniary damage. This included the
loss of the first applicant's salary following his dismissal, the
price of a two-room apartment in Chişinău together with
expenses for repairing it, as well as compensation for damage to the
applicants' health and non-pecuniary damage for eight years of living
in an uninhabitable and overcrowded room despite a final judgment in
their favour giving them the right to accommodation in a two-room
apartment.
- The
Government considered that these claims were highly exaggerated and
that the applicants had failed to submit any evidence of a causal
link between the violations alleged and the damage caused. They
emphasised that the court had not awarded the applicants ownership of
an apartment, but only a social tenancy. Accordingly, they could not
claim the price of an apartment in the proceedings before the Court.
1. Pecuniary damage
- The
Court refers to its finding that the applicants' claims regarding
their dismissal from their jobs were inadmissible (see paragraph 29
above). Accordingly, no claims for payment of salary or other
compensation can be made under this heading.
- The
Court also recalls that the final judgment in the applicants' favour
did not award them ownership of an apartment but merely a right to
accommodation on a social tenancy basis (see paragraph 8 above).
Therefore, they cannot claim the price of an apartment and related
expenses, but only allocation of accommodation (see Lozan and
Others v. Moldova, cited above, § 43).
- In
the absence of specific evidence of damage to the applicants
resulting from the failure to enforce the judgment in their favour,
the Court does not make any award in respect of pecuniary damage.
2. Non-pecuniary damage
- The
Court considers, however, that the judgment of 23 April 1999 should
be enforced without further delay.
- The
Court also considers that the applicants must have been caused a
considerable amount of stress and frustration as a result of the
non-enforcement of the judgment, the more so given the undisputedly
harmful conditions in which they had to live for more than eight
years. However, the amount claimed is excessive. Ruling on an
equitable basis and in view of the exceptional circumstances of the
present case, the Court awards the applicants EUR 4,000 for
non-pecuniary damage (see Malinovskiy, cited above, §
52).
B. Costs and expenses
- The
applicants requested EUR 70 in compensation for their expenses in
connection with the proceedings before the Court. They submitted
receipts for translation services and postal expenses.
- The
Government have not commented.
- On
the basis of the documents in the file, the Court allows this claim
in full.
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 of the Convention and Article 1 of Protocol No. 1 to the
Convention in respect of the failure to enforce the judgment of
23 April 1999, and the remainder of the application
inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention as a result of the failure
to enforce the judgment of 23 April 1999;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention as a result of the same failure
to enforce;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage and EUR 70
(seventy 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 9 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
