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FOURTH
SECTION
CASE OF
LIPATNIKOVA AND RUDIC v. MOLDOVA
(Application
no. 40541/04)
JUDGMENT
STRASBOURG
23
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 Lipatnikova and Rudic 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 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40541/04) 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 Russian national, Ms Natalia Lipatnikova
(“the first applicant”) and a Moldovan national, Ms
Ecaterina Rudic (“the second applicant”), on 11 January
2001. The applicants were represented by Mr V. Zamă
from “Lawyers for Human Rights”, a non-governmental
organisation based in Chişinău.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicants complained that the belated enforcement of a final
judgment of 30 September 1998 in respect of proceedings to which they
were parties had violated their rights guaranteed by Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
16 February 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 first applicant was born in 1946 and lives in
St-Petersburg. The second applicant was born in 1949 and lives in
Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- At
the material time, the applicants were owners of a house in Chişinău
and the land adjacent to it. Their neighbour, T., built an
unauthorised house extension on the land belonging to the applicants.
- In 1995 the Centru local executive (Pretura
sectorului Centru) in Chişinău issued several decisions
requiring the demolition of the unauthorised construction. In 1996 it
also cancelled T.'s original building authorisation as it had been
issued unlawfully. T. initiated court proceedings; the applicants
were involved as third parties since their property rights were
directly affected by the outcome of the proceedings. They enjoyed
full procedural rights.
- On
10 December 1996 the Centru District Court found in favour of T. and
ordered the local authorities to annul their decisions and confirm
the lawfulness of the construction.
- On
16 May 1997 the Chisinau Regional Court quashed that judgment,
rejected T.'s action and upheld the administrative decisions for the
demolition of the building.
- On
15 January 1998 the Court of Appeal quashed the judgment of 16 May
1997 and upheld the judgment of 10 December 1996.
- On
30 September 1998 the Supreme Court of Justice upheld the Prosecutor
General's request for annulment, quashed the judgment of 15 January
1998 and upheld the judgment of 16 May 1997. That judgment was final
and enforceable.
- On
4 December 1998 the local authority issued a new decision for the
demolition of the unauthorised construction.
- The
applicants subsequently made numerous requests for the enforcement of
the final judgment. Each time the local authority replied that the
enforcement was not possible, either due to weather conditions, the
lack of necessary equipment or the new judicial proceedings initiated
by T.
- T.
made several attempts to reopen the proceedings by using
extraordinary means of appeal and claiming that his wife and daughter
had not been party to the proceedings. These requests were rejected
as inadmissible by court decisions in 2001, 2003, 2005 and 2006. The
enforcement proceedings were twice suspended by court orders pending
the outcome of these proceedings: for six months in 2003 and for nine
months in 2005.
- Following
the communication of the present application to the Government, in
July 2006 the judgment of 30 September 1998 was enforced.
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 the failure to enforce the final judgment
of 30 September 1998 had violated their rights as guaranteed by
Articles 3 and 6 § 1 of the Convention and under Article 1
of Protocol No. 1 to the Convention.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
relevant part of Article 6 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 to the Convention 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
applicants also complained of a lack of effective remedies in respect
of their complaints, contrary to Article 13 of the Convention, which
provides:
“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
A. Alleged violation of Article 3 of the Convention
- The
applicants complained that the failure over many
years to enforce the judgment of 30 September 1998 amounted to a
violation of Article 3 of the Convention.
- The
Court notes that the applicants have failed to substantiate this
claim. Moreover, it does not appear that the suffering that they
might have experienced due to the belated execution of the judgment
was sufficient to amount to inhuman and degrading treatment under
Article 3 of the Convention (see Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25,
§ 162).
- Therefore,
this claim must be declared inadmissible as being manifestly
ill-founded in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. The Government's preliminary objection in respect of the
remaining complaints
- According
to documents submitted by the Government, the second applicant
donated to the first applicant one plot of adjacent land in 2001 and
her remaining share in the house and adjacent land in 2001. The
Government argued that the second applicant had therefore not been a
victim of a violation of her rights as a result of the belated
enforcement of the judgment in her favour.
- The
Court notes that the second applicant was prevented from enjoying her
property for more than three years before she donated it to the first
applicant. The applicants were parties to the proceedings (see
paragraph 8 above) and were beneficiaries of the final judgment of
30 September 1998 in that they were assured that the land which
they owned could be used free from interference by T. No
acknowledgment was made of any violation of either of the two
applicants' rights by the domestic authorities, nor was any
compensation paid. In these circumstances, the Court considers that
both applicants may claim to be victims 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 applicants' complaints under Articles 6
§ 1 and 13 of the Convention 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 applicants complained that the non-enforcement of the judgment of
30 September 1998 had violated their rights under Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention. According to the
applicants, the judgment has still not been fully enforced to date
because T. still has a door in his house facing their property and
because an underground cellar and the entry thereto were not
demolished.
- The
Government submitted that the applicants' rights had not been
violated in view of the fact that the authorities had taken all
reasonable steps to enforce the judgment but had faced technical and
legal impediments. In particular, the enforcement could not proceed
pending the outcome of the many court actions lodged by T. and his
family to challenge the 1998 judgment.
- The
Court notes that the judgment has remained unenforced for seven years
and ten months. It also notes that the courts suspended the
enforcement for a total of fifteen months. It follows that, even
excluding the periods during which the enforcement was suspended by a
court, it took the authorities many years to enforce the judgment,
which delay could not be explained by technical problems. Moreover,
the Court observes that the first suspension of enforcement was
ordered in 2003, some five years after the judgment had become final.
No explanation was given for that delay.
- The
Court 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, 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.
- Accordingly, the Court finds, for the reasons given in
the cases cited above, that the failure to enforce the judgment of 30
September 1998 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 OF THE CONVENTION
- The
applicants complained under the Article 13 of the lack of an
effective remedy in respect of their complaint under Article 6 of the
Convention.
- The
Government considered that the authorities could not be held
responsible for the delays in enforcing the judgment since they had
taken all reasonable steps in accordance with the law.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It recalls that the effect of Article 13 is to require the
provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
comply with their obligations under this provision (see Chahal v.
the United Kingdom, judgment of 15 November 1996, Reports
of Judgments and Decisions 1996-V, pp. 1869-70, § 145).
The remedy required by Article 13 must be “effective”,
both in practice and in law. However, such a remedy is required only
for complaints that can be regarded as “arguable” under
the Convention (see Metropolitan Church of Bessarabia and Others
v. Moldova, no. 45701/99, § 137, ECHR 2001 XII).
- In
the present case, the Court has found a violation of Article 6 §
1 in respect of the non-enforcement of the judgment of 30 September
1998.
- The
Court notes that the applicants' complaints regarding the belated
enforcement of the judgment were clearly “arguable” (see
paragraph 29 above). The Government have not identified any provision
of domestic law that would have allowed the applicants to take action
with a view to accelerating the enforcement of the 1998 judgment. On
the contrary, the existence of many possibilities of appealing
against a final court judgment in the domestic law allowed T. to
protract the enforcement proceedings, while leaving the applicants
without any effective remedy.
- Accordingly,
there has been a violation of Article 13 on account of the lack of a
remedy under domestic law in respect of the belated enforcement of a
final court judgment.
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. Non-pecuniary damage
- The
applicants claimed 95,000 euros (EUR) for non-pecuniary damage. They
referred to their advanced age (for Moldova) and to their suffering
resulting from the belated enforcement of the final judgment in their
favour.
- The
Government considered that the amount claimed was excessive,
unsubstantiated and lacked a causal link with the alleged violation.
- The
Court considers that the applicants must have been caused a certain
amount of stress and frustration as a result of the belated
enforcement of the judgment of 30 September 1998. However, the amount
claimed is excessive. Ruling on an equitable basis, the Court awards
the applicants jointly EUR 3,000 for non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 1,425 for costs and expenses. They submitted a
detailed time-sheet according to which the lawyer had spent 23.75
hours working on the case at an hourly rate of EUR 60.
- The
Government disagreed with the amount claimed for representation. They
said that it was excessive and argued that the amount claimed by the
lawyer was not the amount actually paid to him by the applicants.
They disputed the number of hours worked by the applicants' lawyer
and the hourly rate he charged.
- In
the present case, regard being had to the itemised list submitted and
the follow-up nature of the case, the Court awards the applicants'
lawyer 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 inadmissible the complaint under
Article 3 of the Convention and the remainder of the application
admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
4. Holds that there has been a violation of Article 13 of the
Convention in conjunction with Article 6;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months of the date on which the judgment becomes final, in accordance
with Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
