MORARI AND SPIRIDONOV v. THE REPUBLIC OF MOLDOVA - 4771/09 7170/09 - Committee Judgment [2015] ECHR 671 (07 July 2015)

In the case of Morari and Spiridonov v. the Republic of Moldova,

The European Court of Human Rights (Third Section), sitting as a committee composed of:

          Kristina Pardalos, President,
          Valeriu Griţco,
          Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 16 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 4771/09 and 7170/09) 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 Victor Morari and Mr Oleg Spiridonov (“the applicants”), on 12 November 2008 and 10 January 2009 respectively.

2. Mr Spiridonov was represented by Mr A. Bîzgu, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicants complained about the failure to enforce judgments in their favour. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. Mr Morari also relied on Article 13 of the Convention.

4. On 4 June 2013 the applications were communicated to the Government following the adoption of the pilot judgment in the case of Olaru and Others (Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1969 and 1965 respectively and live in Chişinău.

A. Application no. 4771/09

6. The applicant was a police officer from 1991 to 2012, when he retired.

7. On 27 February 2008 the Chișinău Court of Appeal delivered a judgment obliging the Chișinău municipality to provide him and his family with social housing. The court concluded that the applicant had been entitled to social housing under Article 35 (1) of the Law on Police Forces. This judgment was upheld by the Supreme Court of Justice on 11 June 2008 and became final on the same day. Enforcement proceedings were instituted on 10 April 2008.

8. Between 2008 and 2012 he lodged numerous complaints about the failure to enforce the judgment in his favour to no avail. The judgment of 27 February 2008 of the Chișinău Court of Appeal has not been enforced to date.

B. Application no. 7170/09

9. The applicant was a police officer from 1988 to 2005, when he retired.

10. On 6 May 2008 the Chișinău Court of Appeal delivered a judgment obliging the Chișinău municipality to provide him and his family with social housing. The court noted that the applicant had retired from the police force in 2005 and concluded that he had been entitled to social housing under Article 35 (1) of the Law on Police Forces. This judgment was upheld by the Supreme Court of Justice on 23 July 2008 and became final on the same day.

11. Enforcement proceedings were instituted on 16 June 2008. The judgment of 6 May 2008 of the Chișinău Court of Appeal has not been enforced to date.

II. RELEVANT DOMESTIC LAW

12. Pursuant to Article 35 (1) of Law no. 416 on Police Forces, in force at the material time, police officers must be provided with housing by the local administrative authorities after three years of employment.

13. Pursuant to Article 35 p. 3 of the Housing Code, adopted under Law no. 2718 from 3 June 1983, the entitlement to social housing shall be preserved after retirement. Pursuant to Article 36 p. 3 of the Housing Code, the entitlement to social housing shall be withdrawn, if the entitlement was acquired at the working place, once the person had terminated employment with the relevant institution, except for situations provided under Article 35 p. 3 of the Housing Code.

14. Law no. 87, which created a new remedy to address complaints concerning unreasonable length of proceedings and non-enforcement of final court decisions, entered into force on 1 July 2011.

THE LAW

I. JOINDER OF THE APPLICATIONS

15. The Court finds that, given their common factual and legal background, it is appropriate to join the present applications and examine them in a single judgment.

II. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATIONS UNDER ARTICLE 37 OF THE CONVENTION

16. On 15 May 2014 the Government submitted unilateral declarations requesting the Court to strike the applications out with regard to the applicants’ complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, and in respect of application no. 4771/09 also with regard to the complaint under Article 13 of the Convention. The Government drew the Court’s attention to the fact that after their retirement from the police force, the applicants had ceased to be entitled to social housing. They proposed paying Mr Morari 3,500 euros (EUR) and Mr Spiridonov EUR 3,000, in respect of pecuniary, non-pecuniary damage and costs and expenses and argued that these amounts would constitute sufficient just satisfaction in the present cases.

17. By letter of 3 July 2014 Mr Morari disagreed with the unilateral declaration and objected to the striking out of his application from the Court’s list of cases. He considered that the judgment in his favour was valid and thus enforceable and that he was entitled to receive a higher amount of compensation and requested the Court to continue the examination of the application. He also requested EUR 100,000 in respect of pecuniary damage (submitting lease contracts and information about the value of an apartment) and EUR 80,000 in respect of non-pecuniary damage.

18. By letter of 8 July 2014 Mr Spiridonov disagreed with the unilateral declaration and objected to the striking out of his application from the Court’s list of cases. He considered that the judgment in his favour was valid and thus enforceable and that he was entitled to receive a higher amount of compensation and requested the Court to continue the examination of the application. He also requested EUR 55,000 in respect of pecuniary damage, EUR 50,000 in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses.

19. The Court notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued. It will, however, depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI; and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).

20. The Court reiterates the principle set in Former King of Greece and Others v. Greece ([GC] (just satisfaction), no. 25701/94, § 72, 28 November 2002) according to which a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The same principle was later reiterated in the Moldovan leading case concerning non-enforcement of final judgments (see Prodan v. Moldova, no. 49806/99, § 70, ECHR 2004-III (extracts)). The Court is of the opinion that this principle is also applicable in cases as the present ones, where a Government seeks to obtain strike-out decisions by means of unilateral declarations (Decev v. Moldova (no. 2), no. 7365/05, § 18, 24 February 2009).

21. Having studied the terms of the Government’s unilateral declarations, the Court considers, in the particular circumstances of the present cases and in particular because the amounts of compensation proposed are substantially lower than the amount the Court would have awarded in similar cases, that the unilateral declarations do not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the cases.

22. This being so, the Court rejects the Government’s request to strike the applications out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the cases.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

23. The applicants complained about the failure to fully enforce the judgment of 27 February 2008 and 6 May 2008 respectively providing them with social housing. The relevant provisions of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention read as follows:

Article 6

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time.”

Article 1 of Protocol No. 1

“1. 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...”

A. Admissibility

24. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

25. The Government noted that the applicants had retired from the police force and for that reason they had ceased having any entitlement to social housing.

26. The applicants disagreed.

27. In respect of Mr Morari, the Court notes that under the Housing Code a person entitled to social housing does not lose this entitlement after retiring (see paragraph 13 above and Parasca v. Moldova, no. 17986/09, 10 February 2015). In respect of Mr Spiridonov, the Court notes that he was already retired when the domestic court provided him with social housing on 6 May 2008. Moreover, the Court was not presented with evidence that the judgments in the applicants’ favour had been invalidated in any way. Both judgments are not enforced to date.

28. The Court has frequently found violations of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to the one in the present case (see Prodan, cited above, §§ 56 and 62); and Olaru and Others, cited above, § 41).

29. Having examined all the material submitted to it, the Court considers that the Government have not put forward any argument capable of persuading it to reach a different conclusion in the present cases. Having regard to its case-law on the subject, the Court considers that in the instant cases the failure to enforce the judgments in favour of the applicants constitutes a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION

30. Mr Morari further complained that he had no effective remedies in respect of his complaint under Article 6 § 1 of the Convention, in breach of Article 13 of the Convention, which reads as follows:

Article 13

“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.”

31. The Court observes that the applicant’s complaints to the effect that the refusal to enforce the judgment in his favour infringed his rights under Article 6 were undoubtedly arguable (see paragraph 29 above). The applicant was therefore entitled to an effective remedy within the meaning of Article 13.

32. The Court also notes that following the pilot judgment in Olaru and Others (cited above), a remedy to address complaints concerning unreasonable length of proceedings and non-enforcement of final court decisions was established in 2011 under Law no. 87 (see paragraph 14 above). However, the present social housing case was submitted before the adoption of the pilot judgment and the applicant was exempted from exhausting the remedies created subsequently (see Olaru and Others, cited above, § 61). Accordingly, the Court will only examine whether such a remedy was available to the applicant before the enactment of Law no. 87 on 1 July 2011.

33. The Court notes that the judgment in favour of the applicant was not enforced until more than three years after it had been adopted and before Law no. 87 was enacted. The debtor in this case was a local authority.

34. The Court has frequently found violations of Article 13 of the Convention against Moldova in cases concerning non-enforcement or delayed enforcement of a final judgment before the enactment of Law no. 87 (Botnari v. Moldova, no. 19981/02, § 26, 19 June 2007; Olaru and Others, cited above, § 58; Burea and Others v. Moldova, nos. 55349/07, 16968/09, 19750/09, 32645/09, 39377/09, 13 December 2011; Chirica v. the Republic of Moldova, no. 50905/08, § 41, 22 July 2014).

35. For similar reasons, the Court finds that there has been a violation of Article 13 taken together with Article 6 § 1 of the Convention in the present case too.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. 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

37. Mr Morari claimed 100,000 euros (EUR) in respect of pecuniary damage. He submitted lease contracts for alternative accommodation from April 2008 to present for the total amount of EUR 10,493 and a letter from a real estate agency confirming the average market cost of a three-room apartment ranging from EUR 42,500 to EUR 45,200.

38. Mr Spiridonov claimed EUR 55,000 in respect of pecuniary damage, arguing that that was the price of an apartment in Chişinău at the time of his claim.

39. The Government disputed the applicants’ claim arguing that according to the judgments in their favour the Municipality was ordered merely to rent out alternative accommodation to the applicants but not to transfer it into their property. Moreover, the applicants failed to submit any evidence of any pecuniary damage incurred as a result of the non-enforcement of the final judgments.

40. The Court notes that under the final judgments of 27 February 2008 and of 6 May 2008 respectively the Municipality was ordered to rent out to the applicants alternative accommodation. Therefore, the applicants’ claims to be paid the value of an apartment have no legal basis and should be dismissed (see also Panov v. Moldova, no. 37811/04, § 28, 13 July 2010).

41. However, it considers it reasonable to award Mr Morari EUR 10,493 to compensate him for the costs he had incurred for alternative accommodation from April 2008 to present. As Mr Spiridonov failed to substantiate such costs for alternative accommodation, the Court will not make any award under this head.

B. Non-pecuniary damage

42. Mr Morari claimed EUR 80,000 and Mr Spiridonov claimed EUR 50,000 in respect of non-pecuniary damage.

43. The Government considered that the amounts claimed were excessive.

44. The Court considers that the applicants must have been caused a certain amount of suffering in view of the violations found above. However, the amounts claimed are excessive. Ruling on equitable bases, the Court awards each applicant EUR 3,600 in respect of non-pecuniary damage.

C. Costs and expenses

45. Mr Morari did not make any claim. Mr Spiridonov claimed EUR 2,000 for the costs and expenses incurred before the Court.

46. The Government reiterated their position in respect of pecuniary and non-pecuniary damage.

47. 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 Mr Spiridonov the sum of EUR 100 covering costs for the proceedings before the Court.

D. Default interest

48. 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 the applications;

2. Rejects the Government’s request to strike the applications out of the list of cases;

3. Declares the applications admissible;

4. Holds that there has been a violation of Article 6 § 1 and of Article 1 of Protocol No. 1 to the Convention;

5. Holds that in case no. 4771/09 there has been a violation of Article 13 of the Convention;

6. Holds,

(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:

(i) to Mr Morari EUR 10,493 (ten thousand four hundred and ninety-three euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) to each applicant EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) to Mr Spiridonov EUR 100 (one 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Kristina Pardalos
Deputy Registrar President

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