THIRD SECTION
CASE OF
BOGDAN VODĂ GREEK-CATHOLIC
PARISH v. ROMANIA
(Application no.
26270/04)
JUDGMENT
STRASBOURG
19 November 2013
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 Bogdan Vodă Greek-Catholic Parish v.
Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
26270/04) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek-Catholic parish located in Romania, Bogdan Vodă Greek-Catholic
Parish (“the applicant parish”), on 28 June 2004.
The applicant parish was represented by Mr M.
Cupcea, a lawyer practising in Sighetu Marmaţiei. The Romanian Government
(“the Government”) were represented by their Agent, Mr R.-H. Radu, and their co-agent,
Ms I. Cambrea, from the Ministry of Foreign Affairs.
The applicant parish alleged a breach of its
rights of access to court and freedom of religion as a result of the
non-enforcement of a judgment granting the right to perform religious services
in a certain church. On the same basis the applicant parish also complained of
a breach of its right to peaceful enjoyment of possessions and of the principle
of
non-discrimination.
On 20 November 2008 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is the Bogdan Vodă
Greek-Catholic Parish, which belongs to the Maramureş Greek-Catholic
Diocese United with Rome and is located in the village of Bogdan Vodă,
Romania. The priest-vicar of the parish, Mr Ioan Petreuş, authorised Mr M.
Cupcea, a lawyer practising in Sighetu Marmaţiei, to represent the
applicant before the Court.
A. Historical context
Until 1948 there were two recognised Christian religious
groups in Bogdan Vodă, the Greek-Catholic and the Orthodox, each having
its own church.
The Greek-Catholic Church was abolished in that
year by Decree no. 358/1948 and its members were obliged to adhere to the
Orthodox Church. The goods of the Greek-Catholic Church were transferred to the
Orthodox Church on the basis of Decree no. 177/1948 on the general regime for
recognised religious groups, which provided that if the majority of a group’s
believers became members of another church, the goods belonging to the
abandoned group would be transferred into the property of that church. In 1948,
following the entry into force of the above-mentioned legal provisions, the
property rights over the goods belonging to the Bogdan Vodă Greek-Catholic
Parish were therefore transferred to the Bogdan Vodă Orthodox Parish.
Following the fall of the communist regime in
December 1989, Decree no. 358/1948 was annulled by Decree no. 9/1989.
Subsequently, the Greek-Catholic Church was officially recognised by Decree
no. 126/1990. With respect to the legal status of the goods formerly owned by
the Greek-Catholic Church, Decree no. 126/1990 provided that this would be
decided by a special joint commission formed of representatives of the Orthodox
and Greek-Catholic Churches. The commission was to take into account the wishes
of the believers in each community. However, this commission rarely reached a
consensus and took very few decisions with respect to the restitution of
churches to the Greek-Catholics.
B. Specific situation of the Bogdan Vodă
Greek-Catholic Parish
In the village of Bogdan Vodă there are
three churches which are the property of the Orthodox Parish: the “old church”
(built between 1715 and 1720) which belonged to the Greek-Catholic Parish and
is no longer in use, as it has been locked by the head of the Orthodox Parish;
the Orthodox church (built between 1935 and 1937), also not in use; and a new Orthodox
church (built between 1993 and 1998) currently used by the Orthodox Parish.
The religious services of the Greek-Catholic
Parish are currently held in an old house in Bogdan Vodă, a place which,
according to the applicant, is not suitable for the needs of the local
Greek-Catholic community.
The applicant
parish’s attempts to recover the property rights, or at least the use of the
“old church” which it formerly owned, through negotiations with representatives
of the Orthodox Church as provided by Decree no. 126/1990, have remained unresolved,
and no special joint commission has ever been set up in this connection. The
views of the Orthodox Church concerning the applicant parish’s demands were
expressed in a letter sent to the applicant parish in 1995 by the Council of
the Bogdan Vodă Orthodox Parish. The letter noted that the Greek-Catholic
Parish was forbidden to enter the “old church” and to perform religious services
in the church’s cemetery, because of the very small number of Greek-Catholic
believers in Bogdan Vodă.
C. Proceedings concerning the right to hold religious
services in the “old church”
Following the failure of its attempts at
negotiation, on 19 June 1996 the applicant parish brought a civil action against
the Bogdan Vodă Orthodox Parish, seeking the right to perform daily
religious services in the “old church” and payment of 100,000 Romanian lei
(ROL) in damages for each day of delay in enforcement. The civil action was
based on the provisions of Article 1073 of the Civil Code, which sets forth the
general rules with respect to obligations between private parties, as well as
on the provisions of Decree no. 126/1990.
The Dragomireşti District Court on 25
November 1996 rejected the applicant parish’s action as inadmissible, since it had
not proved that an obligation existed in respect of the other party.
On 15 May 1997 the Maramureş County Court
dismissed an appeal by the applicant parish against the first-instance court
decision as
ill-founded.
In a final judgment of 29 January 1998 the Cluj
Court of Appeal, after reassessing the evidence in the case, allowed the
applicant parish’s appeal on points of law (recurs) against the judgment
of 15 May 1997, and obliged the Orthodox Parish to allow the applicant parish to
use the “old church” for daily religious services and to pay ROL 100,000 in damages
for each day’s delay in the enforcement of this judgment.
The General Prosecutor lodged an
extraordinary appeal (recurs în anulare) against the 29 January 1998
judgment, claiming that by issuing a decision in the applicant parish’s case
the Cluj Court of Appeal had breached first the provisions of Decree no.
126/1990 and second the Constitution, which provides that public property may
not be alienated. The extraordinary appeal was finally rejected by the Supreme
Court of Justice on 15 December 2000 as ill-founded.
D. The proceedings for the enforcement of the 29
January 1998 judgment
Immediately after the delivery
of the judgment in its favour the applicant parish instituted enforcement
proceedings. However, the execution was suspended until delivery of the final
judgment in the extraordinary appeal proceedings in December 2000.
Subsequently, in January 2001 the applicant parish again instituted enforcement
proceedings before the domestic courts, and a notice was sent by the bailiff to
the Orthodox Parish requesting enforcement of the 1998 judgment no later than
19 January 2001.
It appears from a note produced by
the bailiff on 26 September 2002 that it was impossible to enforce the judgment
on that date because of a violent protest by around 300-400 Orthodox citizens
of Bogdan Vodă as well as the refusal of the head of the Orthodox Parish
(who is also the Orthodox priest of the village) to hand over the keys of the
church. From the above-mentioned note it also appears that, although the local chief
of police was present, no measures were taken to disperse the crowd and pursue
the enforcement of the court decision.
On 8 October 2002 a meeting between
representatives of the two Churches was held in the bailiff’s office in
the town of Sighet, in the presence of the police. The record of this meeting
produced by the bailiff notes that the head of the Orthodox Parish refused to
enforce the judgment, citing the opposition of the majority of the village’s
inhabitants.
On 27 September 2002 the applicant parish complained
to the County Prefect, the Ministry of Justice, the County Police Office and
the State Secretary for Religious Denominations that the orthodox priest of
Bogdan Vodă was inciting the local community to obstruct the enforcement
of a court judgment. No reply was received by the applicant organisation and no
action was taken by the authorities to remedy the situation.
On 21 November 2002 the applicant
parish complained to the Prosecutor’s Office of the Maramureş County Court,
seeking an investigation of the matter and support in enforcement of the 1998
judgment. The applicant parish stated in its complaint that the Orthodox priest
of the village was opposing the enforcement of the final judgment, and that in
a similar case in another village the intervention of the prosecuting
authorities had proved effective and had actually led to the enforcement of the
judgment in that case. No response to this complaint was ever received by the
applicant parish.
In January 2004 the applicant parish also complained
to the President of Romania about the non-enforcement of the 1998 judgment. In
response it was informed that the legal status of the churches formerly owned
by the Greek-Catholics was to be decided by the special commission set up by
Decree no. 126/1990, taking into consideration the will of the local community.
On 3 October 2005 the applicant parish sent a
letter expressly requesting the bailiff to continue the enforcement procedure.
On 10 October 2005 the Dragomireşti District
Court granted the bailiff’s request on behalf of the applicant parish and
ordered the compulsory enforcement of the 1998 judgment.
The applicant parish’s attempts
to reach a friendly settlement of the situation by holding discussions with
representatives of the Orthodox Church during the months of December 2005 and
January 2006 produced no result.
Another attempt to enforce the
1998 judgment took place at the request of the applicant parish on 26 January
2006, when the bailiff, accompanied by thirty-four police officers, went to the
village of Bogdan Vodă. The record of this action made by the bailiff stated
that the judgment could not be enforced because of a violent protest by around
300 Orthodox villagers and the refusal of the head of the Orthodox Parish to
unlock the church. It concluded that the head of the Orthodox Parish had been
informed that refusing to enforce a court judgment was punishable in law.
According to the applicant parish, the presence of the protesting Orthodox
villagers each time an attempt to enforce the court judgment took place was due
to continual incitement by the head of the Orthodox Parish.
On 26 September 2007 and 3 April
and 10 September 2009 the bailiff again went to the village of Bogdan Vodă,
but did not find any of the representatives of the Orthodox Parish.
On 31 January 2008, the bailiff sent a letter to
the Vişeu de Sus Orthodox Archpriestship, inviting them to submit
information concerning the property of the Bogdan Vodă Orthodox Parish,
but received no reply.
The bailiff informed the
Ministry of Foreign Affairs by letter on
30 January 2009 that the legal obligation of the bailiff consisted only in taking
action to fulfil an obligation to execute a judgment or in the event of refusal
to execute. In the present case, the bailiff considered her legal obligation
discharged once she had recorded the debtor’s refusal to fulfil the obligations
set forth in the final judgment.
The judgment of 29 January 1998
has not been enforced to date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Excerpts from the relevant domestic law
concerning the execution of final judgments, namely the Civil Procedure Code
and Law no. 188/2000 regulating the activities of bailiffs, are given in Virgil
Ionescu v. Romania (no. 53037/99, §§ 31-37, 8 June 2005).
The offence of non-observance of court judgments
is set out in Article 271 of the Criminal Code, under the chapter dealing with offences
which obstruct the accomplishment of justice and which may be investigated as
such. The relevant provision reads as follows:
Article 271 - Non-observance of court judgments
“(1) Obstructing the enforcement of a court judgment by threats
towards the enforcement authority is punishable by six months to three years’
imprisonment, and if acts of violence have been committed the punishment is
from one to five years ...”
Excerpts from the relevant domestic law and
practice concerning the general situation of recognised religious groups, and
specifically Decree no. 126/1990 and the attempts of the Greek-Catholic
Church to recover its property, are given in Sâmbăta Bihor
Greek-Catholic Parish v. Romania (no. 48107/99, §§ 26-49, 12 January 2010).
THE LAW
I. PRELIMINARY ISSUE
The Government submitted by letter on 14
September 2011 that Mr Ioan Petreuş had not demonstrated his capacity
to represent the Bogdan Vodă Parish in the proceedings before the Court.
On 30 July 2013 the applicant parish’s
representative sent the Court a copy of the decision of the Maramureş
Greek-Catholic Bishop of 19 November 2002, naming priest Ioan Petreuş
as parish administrator of the Bogdan Vodă Greek-Catholic Parish; this was
accompanied by a certificate in this respect issued by the Maramureş
Diocese and dated 23 July 2013.
In view of the above, the Court considers that
Mr Ioan Petreuş, as its priest-vicar and administrator, has the authority
to represent the applicant parish in legal proceedings such as the present
proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant parish complained that the
non-enforcement of the judgment in its favour had infringed its right to access
to court as provided by Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The Government raised an objection of
non-exhaustion of domestic remedies. Firstly, the Government submitted that the
applicant parish had available to it, but did not use, the procedure for objection
to the execution of a judgment. Under this procedure, the applicant could have
complained that the bailiff had refused to carry out the enforcement, and the
courts could have ordered the bailiff to do so.
Secondly, the Government submitted that the applicant parish
had not followed the special procedure provided by Decree no. 126/1990, and had
not addressed its demands to the Orthodox Parish in writing. Such a procedure
should have permitted the applicant parish’s demands to be dealt with by the
special commission provided for by this decree, taking into account the will of
the majority of the believers in the parish concerned.
Thirdly, the Government contended that the applicant parish had
failed to lodge a proper criminal complaint against the Orthodox priest of
Bogdan Vodă.
The Government did not submit examples of domestic case-law in
support of any of these allegations.
Finally, the Government noted that the applicant parish had not
submitted any further requests to have the final judgment in its favour
enforced since January 2006, a passive attitude which had prevented the bailiff
from continuing the execution proceedings.
The applicant parish submitted that the
procedures mentioned by the Government were ineffective in its case.
The
Court considers that the objection raised by the Government is very closely
linked to the substance of the applicant parish’s complaint under Article 6 § 1
of the Convention. It therefore considers it appropriate to join this objection
to the merits (see Flaviu and Dalia Serban v. Romania, no. 36446/04, §
48, 14 September 2010).
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant parish submitted
that the failure to enforce the judgment in the current case was not due to its
own passivity or to inactivity on the part of the bailiff, but to lack of
support from the other competent authorities.
The Government argued that neither the bailiff
nor the authorities were at fault in respect of the non-enforcement, and
reiterated its arguments concerning non-exhaustion of domestic remedies by the
applicant parish.
The Court reiterates that
execution of a final judgment given by any court must be regarded as an
integral part of the “trial” for the purposes of Article 6 of the Convention
(see Hornsby v. Greece, 19 March 1997, § 40, Reports of
Judgments and Decisions 1997-II). However, a delay
in the execution of a judgment may be justified in particular circumstances
(see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III) and the right of “access to court”
does not impose an obligation on a State to execute every judgment of a civil
character without having regard to the particular circumstances of the case
(see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The Court notes that State responsibility
for enforcement of a judgment against a private party extends no further than
the involvement of State bodies in the enforcement process. When the
authorities are obliged to act in order to enforce a judgment and they fail to
do so, their inaction can engage the State’s responsibility under Article 6 § 1
of the Convention (see, mutatis mutandis, Cebotari and Others v.
Moldova, nos. 37763/04, 37712/04, 35247/04, 35178/04
and 34350/04, § 39, 27 January 2009).
. In
the present case, the dispute was between private parties. Consequently, the
Court emphasises that it is for each State to equip itself with legal
instruments which are adequate and sufficient to ensure the fulfilment of
positive obligations imposed upon the State. The Court’s only task is to
examine whether the measures applied by the authorities in the present case
were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). In cases such as the present one, which
necessitate actions by a debtor who is a private person, the State, as the
possessor of public authority, has to act diligently in order to assist a
creditor with the execution of a judgment (see Fociac v. Romania, no. 2577/02,
§ 70, 3 February 2005).
The Court notes that the enforcement proceedings
have been pending since 1998. It can be seen from the file that the applicant parish
was very active in requesting the bailiff to enforce the judgment, as well as
informing and requesting support from other relevant authorities and trying to
obtain a friendly settlement of the case. Hence, the Court notes that the applicant
parish has been requesting enforcement of the judgment in question since 1998.
In the initial phase the enforcement was delayed for two years by an
extraordinary appeal lodged by the General Prosecutor and which was ultimately dismissed
by the courts as ill-founded (see paragraphs 16 and 17 above). Subsequently, in
January 2001 an enforcement file was opened by an enforcement officer in
respect of the said judgment, at the request of the applicant. However, the
enforcement attempts made in the presence of the applicant parish by the
bailiff and representatives of the police on 26 September and 8 October 2002
and 26 January 2006 were unsuccessful because of violent protests by Orthodox
villagers and the refusal of the Orthodox priest to hand over the keys to the
church (see paragraphs 18, 19 and 26 above). The enforcement attempts were
continued by the bailiff even after 2006, and were stopped in 2009 with the
conclusion that the execution could not be accomplished because of the refusal of
the Orthodox priest of the village to abide by any of the obligations set out
in the final judgment (see paragraphs 27-29 above).
Concerning the Government’s submission that the
applicant parish had failed to use the procedure for objection to execution of
a judgment which could have resulted in a court ordering the bailiff to fulfil
his/her obligations, the Court notes, along with the applicant parish, that the
failure to enforce the judgment in the current case was not necessarily due to
the bailiff’s inactivity but to a lack of preparation, response and support
from the other competent authorities such as the police, gendarmes and prosecutors.
In this respect the Court observes that, although present at every enforcement
attempt, the police and the gendarmes did not take any action. Nor did they
attempt to investigate the ultimate offence of non-observance of court
judgments. On this point, and in reply to the Government’s allegation that the
applicant parish had failed to submit a proper criminal complaint against the
Orthodox priest, the Court notes that the applicant parish did indeed send a
proper complaint to the competent prosecutor, although the law does not require
a prior complaint for an investigation of the above-named offence to be
launched, but that it received no reply (see paragraph 21 above).
Bearing in mind the obligations incumbent on the authorities as
possessors of public authority in matters of enforcement, the Court notes that
the Romanian authorities did not apply any sanction on the debtor of the
obligation in the current case for non-observance of a final judgment. In
addition, no plausible explanation was provided which would justify this
inaction (see Ruianu, cited above, §72).
In this respect the Court also notes that the Government have
not provided examples from domestic practice where complaints about refusal by
a debtor to execute a final judgment had actually led to the enforcement of the
judgment in question. The Court therefore finds no reason to depart from its
conclusion in similar cases that, to date, the Government have not demonstrated
that the objection to execution would be an effective remedy (see Elena
Negulescu v. Romania, no. 25111/02,
§ 43, 1 July 2008; Constantin Oprea v. Romania, no. 24724/03,
§ 41, 8 November 2007; and Flaviu and Dalia Serban, cited above, §
60).
With respect to the Government’s submission that
the applicant parish had failed to follow the special procedure provided by Decree
no. 126/1990, the Court notes that before submitting its case to the
scrutiny of the courts, as well as after delivery of the final judgment, the
applicant parish had held discussions and negotiations on numerous occasions
with representatives of the Orthodox Church, who had made their views very
clear in the case (see paragraphs 11, 19 and 25 above). The Court also notes
that the domestic law allowed the applicant parish to submit its demands to the
courts, who granted its request by way of a final judgment. The obligation to assist
the applicant parish in the enforcement of a final judgment does not belong to
the special commission set up by Decree no. 126/1990, but to the enforcement
authorities. Therefore, under the specific circumstances of this case, and also
taking into account the general situation in respect of requests submitted
under the special procedure provided by Decree no. 126/1990 by the
Greek-Catholic Church, as described in the case of Sâmbăta Bihor
Greek-Catholic Parish (cited above), the Court holds that this procedure
could not have constituted an effective remedy allowing the applicant parish to
obtain enforcement of the judgment in the current case.
In view of the above, the Court therefore
dismisses the Government’s objection concerning non-exhaustion of domestic
remedies.
The foregoing considerations are
sufficient to enable the Court to conclude that, although the
authorities were equipped with adequate and sufficient measures, they did not
act diligently and in due time to assist the applicant parish in execution of
the judgment in its favour.
There has accordingly been a violation of
Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS
. Citing Article
6 § 1 of the Convention taken together with Article 14, the applicant parish
also complained that the non-enforcement of the judgment in its favour breached
the principle of non-discrimination.
In addition, the applicant parish complained
that by reason of the non-enforcement of the final judgment of 29 January 1998
it found itself in a position where it was impossible for it to hold religious
services under proper conditions, in breach of its right to freedom of religion
and its right to peaceful enjoyment of possessions. The applicant parish complained
that it had been deprived of these rights for the sole reason that it belonged
to a minority religious group, in contrast with the Orthodox majority. It
relied on Article 9 of the Convention and Article 1 of Protocol No. 1 to the
Convention, each taken alone or together with Article 14 of the Convention. The
applicant parish also relied on Article 1 of Protocol No. 12 to the Convention.
The Government contested these arguments.
Having regard to the findings in paragraphs 45-50 above, the Court concludes that these complaints must
be declared admissible, but that it is not necessary to examine them on the
merits (see, mutatis mutandis, Laino v. Italy [GC], no. 33158/96,
§ 25, ECHR 1999-I; Canea Catholic Church v. Greece, 16 December
1997, § 50, Reports 1997-VIII; and Ruianu, cited above, § 75).
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 applicant parish claimed 11,104.78 Romanian
lei (RON) (2,626 euros (EUR)) in respect of pecuniary damage consisting of the
costs they incurred in order to build a chapel appropriate for holding
religious service. They provided itemised invoices for a total amount of RON 6,104.78
(EUR 1,450) consisting of various construction materials.
The applicant parish also claimed EUR 10,000 in respect of
non-pecuniary damage, in only partial compensation for its suffering caused by
the fact that it was prevented from using their former church.
The Government requested the Court to dismiss
the applicant parish’s claims in respect of pecuniary damage, since there was
no link between the alleged violation and the damage claimed. In addition the
Government noted that only the amount of RON 6,104.78 was supported by
documents. With respect to the non-pecuniary damages claimed, the Government
submitted that they were excessive, and considered that the finding of a
violation would constitute in itself sufficient just satisfaction for any
non-pecuniary damage the applicant parish might have suffered.
The Court notes that the
judgment in favour of the applicant parish has not been enforced to date (see
paragraph 30 above). The Court reiterates that
the most appropriate form of redress in respect of a violation of Article 6
is to ensure that the applicant parish as far as possible is put in the
position it would have been in had the requirements of Article 6 not been
disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, §
12, Series A no. 85). Having regard to the violation found, the Court finds
that in the present case this principle applies as well. It therefore considers
that the Government must take the appropriate means to assist the applicant in
the enforcement of the judgment of 29 January 1998 at the earliest possible
date.
. The Court
further considers that the applicant parish did not submit sufficient
information for it to be able to conclude that the construction material was
indeed used to build a chapel in the village of Bogdan Vodă, and therefore
rejects its claim for pecuniary damages.
. The
Court however considers that the interference with the applicant parish’s right
of access to court caused suffering to the applicant parish consisting of a
profound feeling of injustice, due to the fact that for more than ten years and
despite a final judgment in its favour it did not benefit from an effective
protection of its rights. Making an assessment on an equitable basis, as
required by Article 41 of the Convention, it awards the applicant parish EUR 4,000
euros in compensation for non-pecuniary damage.
B. Costs and expenses
The applicant parish also claimed RON 1,500 (EUR
355) for costs and expenses incurred before the domestic enforcement
authorities. The applicant parish also requested RON 1,240 (EUR 300) for costs
and expenses incurred in respect of legal representation and translation of
documents before the Court.
The Government submitted that the costs and
expenses requested were not necessary and were not linked to the case. In
addition, the costs incurred before the domestic enforcement authorities were
not supported by documents.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 300 for costs and expenses in the
proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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,
1. Joins to the merits the Government’s
preliminary objection concerning the exhaustion of domestic remedies and dismisses
it;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds that the respondent
State shall take the appropriate means to assist the applicant in the enforcement
of the outstanding judgment of 29 January 1998 of the Cluj Court of Appeal
at the earliest possible date;
5. Holds that there is no need to examine the
remainder of the applicant’s complaints;
6. 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, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and expenses;
(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;
7. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
