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FOURTH
SECTION
CASE OF
BOBOC v. MOLDOVA
(Application
no. 27581/04)
JUDGMENT
STRASBOURG
4 November
2008
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 Boboc v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27581/04) 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 Moldovan national, Mr Alexei Boboc (“the
applicant”), on 2 July 2004.
- The
applicant was represented by Mr T. Ghetivu, a lawyer practising in
Cahul. The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the proceedings in his case
had been excessively long and that he had not had an effective remedy
in respect of his complaint concerning the length of the proceedings.
- The
application was allocated to the Fourth Section of the Court. On
30 November 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 applicant was born in 1933 and lives in Cahul.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1983 the applicant bought a house. The Cahul municipality
subsequently allocated to the applicant the plot of land on which his
house stood. In 1995, E., the applicant's neighbour, moved the fence
separating their respective plots and thus reduced the size of the
applicant's land.
- The applicant brought court proceedings against E.,
seeking the removal of all impediments on the part of E. to his use
of his land. On 29 May 1995 the Cahul District Court found in
favour of the applicant. No appeal was lodged and the judgment became
final. Following a request by the Prosecutor General's Office, on 13
October 1995 the Supreme Court of Justice quashed the judgment of 29
May 1995 and ordered a full re-hearing. On 24 May 1996 the Cahul
District Court rejected the applicant's claims.
- In parallel, the applicant requested the municipality
to determine the boundary between his land and that of E. This was
carried out on an unknown date in 1996. E. challenged the
municipality's actions in court but her complaint was rejected on 4
May 1996 by the Cahul District Court. There was no appeal and the
judgment became final.
- The applicant requested the municipality to establish
his title to the land. On 26 February 1997 the municipality did so,
determining the area of the land respectively owned by E. and the
applicant. E. challenged that decision in court. Her request was
rejected by the Cahul District Court on 8 August 1997. That
judgment was upheld by the Cahul Regional Court on 13 November
1997 and the Court of Appeal on 17 March 1998. The judgment thus
became final.
- On 4 February 1999 the municipality annulled its own
decision of 26 February 1997 and granted the applicant title to
a smaller parcel of land. The applicant challenged the 1999 decision
in court and sought an order for the removal of all impediments to
his use of his land. On 20 September 1999 the Cahul District
Court annulled the 1999 municipality's decision. That judgment was
upheld by the Comrat Regional Court on 2 May 2000 and the Court of
Appeal on 7 September 2000. That judgment was final.
- The applicant requested the Cahul District Court to
issue an enforcement warrant, which was apparently refused. He made a
number of complaints in this respect to various State authorities
such as the Parliament, the Supreme Court of Justice, the
municipality (for instance, in November 2000, September 2001, April
and June 2002, January and March 2003) and was informed that during
the period 1995-2000 no enforcement warrant in his name had been
submitted for execution. On 19 December 2001 he was informed by the
Ministry of Justice that it was not necessary to issue any
enforcement warrant since the court in its judgment of 8 August 1997
had rejected E.'s claims and thus the municipality's decision of
26 February 1997 remained in force.
- On 8 October 2001 E.'s representative C.M. lodged a
separate appeal against the judgment of 20 September 1999. On 5
December 2001 the Supreme Court of Justice decided that the appeal by
E.'s representative should be examined by the Chişinău
Regional Court, since most of the judges in the Cahul District Court
had already sat in the case. On 18 April 2002 the Chişinău
Regional Court dismissed the appeal on grounds of res judicata.
There was no appeal and the judgment became final.
- On 6 August 2002 E. initiated new proceedings asking
the court to determine the rights over the land (both hers and the
applicant's). The applicant argued that there was no need to examine
the case since all outstanding issues had been settled by the various
municipality and court decisions adopted earlier. On 30 May 2003 he
asked for an expert report to be made concerning the feasibility of
using the land in any other manner than that in which it had been
allocated by the municipality in 1997.
- On 11 July 2003 the Cahul District Court rejected E.'s
claim and found that the land should be divided in accordance with
the municipality's decision of 26 February 1997. That judgment was
upheld by the Cahul Court of Appeal on 9 April 2004 and by the
Supreme Court of Justice on 26 May 2004.
- On 26 May 2004 the applicant was issued with an
enforcement warrant ordering the delimitation of the border between
the applicant's land and that belonging to E.
II. RELEVANT DOMESTIC LAW
- Article 192 of the Code of Civil Procedure reads:
“(1) Court actions shall be examined by
the first-instance court within a reasonable time. The criteria for
determining of the reasonable length of the proceedings include: the
complexity of the case, the conduct of the parties to the
proceedings, the conduct of the court. The observance of the
reasonable time requirement in examining cases shall be ensured by
the court. In examining a specific case, the observance of the
reasonable time requirement shall be verified by the higher courts
when examining the case on the relevant form of appeal.”
THE LAW
- The
applicant complained of the excessive length of the proceedings in
his case, contrary to Article 6 of the Convention which reads, in so
far as relevant:
“1. In the determination of his
civil rights and obligations ..., everyone is entitled to a fair ...
hearing within a reasonable time ...”
- The
applicant also complained of a breach of Article 13 taken in
conjunction with Article 6 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.”
I. ADMISSIBILITY
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared 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 OF THE CONVENTION
- The
applicant complained that the proceedings in his case, which lasted
for nine years, had been excessively long.
- The
Government submitted that there had been four different sets of
proceedings in the applicant's case, each with its own, separate
object and involving different parties. Each of the four sets of
proceedings had finished within a reasonable time. Moreover, the
applicant had himself contributed to the length of the proceedings by
asking on several occasions for a postponement of court hearings, by
failing to object to requests for postponement by the other party to
the proceedings and by asking for an expert report, which further
delayed the proceedings.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities, and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII, and Cravcenco v. Moldova, no. 13012/02,
§ 44, 15 January 2008).
1. Period to be taken into consideration
- The Court notes that Moldova ratified the Convention
on 12 September 1997. Accordingly, the period of time during
which the initial set of proceedings took place, up until that date,
falls outside the Court's jurisdiction ratione temporis.
However, the stage of proceedings reached by that date may be taken
into consideration in accordance with the Court's case-law (see, for
example, Foti and Others v. Italy, 10 December 1982, § 53,
Series A no. 56, and Styranowski v. Poland, 30 October 1998, §
46, Reports of Judgments and Decisions 1998 VIII).
- The
Court takes note of the Government's submission that the proceedings
in the applicant's case consisted of four separate court actions,
which should not be considered as one set of uninterrupted
proceedings. However, it finds that the object of all the
proceedings, in which the applicant participated, was the same: the
delimitation of his land from that of his neighbour and the issuing
of the relevant documents to confirm such delimitation. Since the
domestic courts referred, as late as 2004, to the municipality's
decision of 1997, and this had been the subject of the two other
previous sets of proceedings within the Court's jurisdiction, between
the parties or between one of the parties and the municipality, the
Court is satisfied that the dispute between the applicant and E. over
the allocation of their land, with the involvement of the
municipality, was the subject of all four actions examined by the
courts.
- It
appears from the documents in the file that the dispute between the
applicant and E. only truly ended when the enforcement warrant issued
on 26 May 2004 was enforced (see paragraph 16 above). The Court
reiterates that “execution of a judgment given by any court
must ... be regarded as an integral part of the 'trial' for the
purposes of Article 6” (see the Hornsby v. Greece
judgment of 19 March 1997, § 40, Reports 1997-II, and
Prodan v. Moldova, no. 49806/99, § 52, ECHR 2004 III
(extracts)). The parties did not inform the Court of the date when
the order of 26 May 2004 was enforced, which leads the Court to
presume that it was enforced shortly after its adoption.
- The
Court, accordingly, considers that all four sets of proceedings
relate to the same subject matter. It will therefore consider the
period as a whole for the purposes of its Article 6 § 1
analysis, from 12 September 1997 (see paragraph 24 above) until 26
May 2004, that is six years and eight months and 14 days.
2. Complexity of the case
- As
concerns the complexity of the case, the Court notes that the
domestic courts at one point ordered an expert report to be made,
upon the applicant's request of 30 May 2003 (see paragraph 14 above).
The court that ordered that report gave its judgment by 11 July 2003
(see paragraph 15 above), which implies that the report had been
made without any delay and did not contribute in any significant
manner to the length of the proceedings.
The
parties did not inform the Court of any other time-consuming act
during the proceedings which could have explained the overall length
of the proceedings.
3. Conduct of the applicant
- As
to the applicant's conduct, the Court notes that the Government
submitted evidence that the applicant had asked on four occasions for
a postponement of the hearings, including at least once because of
the need to submit evidence requested by the court in respect of one
of his claims. In the court's view, the applicant was exercising his
procedural rights and the delay caused by these postponements cannot
be considered as seriously affecting the overall length of the
proceedings.
- The
Government submitted that the applicant's failure to object to
postponements of the hearings prevented him from claiming a violation
of Article 6 of the Convention (see Ciricosta and Viola v. Italy,
4 December 1995, § 32, Series A no. 337 A). However,
the Court considers that the circumstances of the present case are
distinct from the special situation obtaining in Ciricosta. In
that case the Court noted that a remedy for delays in proceedings had
recently been introduced and that at the time of its judgment it was
too early to verify its effectiveness (§ 31). This was not so in
the present case. Moreover, the total number and duration of
postponements in Ciricosta were so extensive as to affect the
duration of the proceedings seriously, while the Government submitted
evidence of only several such postponements in the present case and
these were not capable of affecting the overall length of the
proceedings. The Court concludes that the applicant did not
contribute in any significant manner to the length of the
proceedings.
4. Conduct of the authorities
- The
Court notes that all three actions examined by the domestic courts
after Moldova's ratification of the Convention concerned,
essentially, the manner in which the land had been allocated by the
municipality's decision of 26 February 1997. While the lawfulness of
that decision was confirmed by a final court judgment on 17 March
1998 (see paragraph 10 above), the State authorities (the
municipality) attempted to annul that decision in 1999 in spite of
the fact that the matter was res judicata (see paragraph 11
above). It follows that this additional delay was caused by actions
of the State authorities.
- Moreover,
following the adoption of the final judgment in these proceedings on
7 September 2000, the applicant was not able to obtain an enforcement
warrant enabling the physical delimitation of his land from that of
E. until 2004. Throughout this period, the applicant complained of
E.'s refusal to return the land to him in accordance with the
municipality's decision, as ordered by the courts. This delay is
attributable to the State.
- Furthermore,
and again in spite of the res judicata principle, it took the
courts a further six months before an appeal in cassation lodged by
one of E.'s representatives was finally dismissed, even though it was
clear that the case had been decided by a final judgment based on
E.'s own appeal (see paragraphs 11 and 13 above).
- Finally,
the courts accepted for examination a new action lodged by E. in
2002. The courts ordered the allocation of the land in accordance
with the municipality's decision of 26 February 1997. However, it
appears that this issue had already been decided in the 1999
proceedings.
- The
Court considers that the delay in the proceedings has resulted in
part from the domestic courts' willingness to examine repeated and
essentially similar claims between the parties to the proceedings
(see, mutatis mutandis, Gjonbocari and Others v. Albania,
no. 10508/02, §§ 65 67, 23 October 2007).
5. What was at stake for the applicant
- The
case concerned the land around the applicant's house. The inability
to use all of it in an unimpeded manner must have affected the
enjoyment of his property and was thus of a certain importance for
him and his family. This warranted a certain need for the case to be
dealt with expeditiously.
6. Conclusion
- In the light of the above circumstances, including the
repeated examination of essentially the same case and in the absence
of any particular complexity, taking into account the overall length
of the proceedings, and having regard to what was at stake for the
applicant, the Court concludes that the requirement of a “reasonable
time” laid down in Article 6 § 1 of the Convention
was not complied with in the present case. There has therefore been a
breach of that provision.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained of a lack of effective remedies in respect of
his complaint concerning the length of the proceedings.
The
Government considered that the applicant had not submitted sufficient
arguments in respect of this complaint and asked the Court to reject
it. They also referred to the power of the higher courts to verify
observance of the reasonable time requirement, as expressly provided
for in Article 192 of the Code of Civil Procedure (see paragraph
17 above). The applicant did not ask the courts to carry out such
verification.
- The
Court reiterates 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, 15 November 1996, § 145, Reports
1996-V). 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).
- The
Court observes that the applicant's complaint regarding the excessive
length of the proceedings contrary to Article 6 of the Convention was
undoubtedly arguable (see paragraph 37 above). The applicant was
therefore entitled to an effective domestic 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 despite the power of the higher courts to verify
observance of the reasonable time requirement, as referred to by the
Government, none of them exercised that power. The Court does not see
the wording of Article 192 of the Code of Civil Procedure, cited
above, as subjecting to a party's request the courts' power to review
that requirement, and the Government did not submit any examples of
domestic case-law to support such a view. It is plain from the
wording of Article 191 that no separate court action was required,
and the applicant complained to various authorities, including
courts, about the delays in enforcing the judgment and also submitted
that there had been no need to accept the fourth court action for
examination since the issue had already been decided by a final court
judgment. This gave sufficient opportunities to the courts to take
measures designed to speed up the proceedings, but they failed to do
so. It follows that, despite the existence of legal provisions
allowing the courts to take action, nothing was done in the
applicant's case and he did not have at his disposal any means of
accelerating the proceedings. In addition, the Government did not
indicate any legal provision which would have allowed the applicant
to obtain compensation for the delay in the proceedings. The Court
therefore finds that the applicant did not have at his disposal
effective remedies in respect of his complaint about the length of
the proceedings.
- There
has, accordingly, been a violation of Article 13 taken in conjunction
with Article 6 § 1 of the Convention.
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. Pecuniary damage
- The
applicant claimed 450 euros (EUR) in compensation for pecuniary
damage caused to him, without giving any further details.
- The
Court considers that there is no causal link between the violations
it has found in the present case and the applicant's claims for
compensation for the unspecified pecuniary damage. This claim must
therefore be rejected.
B. Non-pecuniary damage
- The
applicant claimed EUR 18,000 in compensation for non-pecuniary damage
caused by the excessive length of the proceedings, claiming that he
had experienced suffering and distress as a result.
- The
Government disagreed and considered that the applicant had not
adduced any evidence to support his claim. They referred to their
position that the applicant had been involved in four different court
actions and that no violation of any Convention Article had occurred.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the delay in the
proceedings, considering the importance of the proceedings to him.
Deciding on an equitable basis, the Court awards him EUR 1,500 for
non-pecuniary damage.
C. Costs and expenses
- The
applicant did not make any claim under this head.
D. 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;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one thousand
five hundred euros) in respect of non-pecuniary damage, 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 on that amount;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
