European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF BADAN v. THE REPUBLIC OF MOLDOVA

(Application no. 56405/12)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

29 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Badan v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 56405/12) 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, Ms Aurelia Badan (“the applicant”), on 6 August 2012;

the decision to give notice to the Moldovan Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 8 June 2021,

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

INTRODUCTION

1.  The case concerns the failure of the State to enforce a final judicial decision in favour of the applicant within a reasonable time.

THE FACTS

2.  The applicant was born in 1985 and lives in Orhei. She was represented before the Court by Mr V. Duca, a lawyer practising in Orhei.

3.  The Government were represented first by their Agent, Mr M. Gurin and later by their Agent ad-interim Ms R. Revencu.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  After her former husband failed paying alimony for four months, the applicant obtained, on 25 May 2009, a final judicial decision obliging him to pay her twenty-five percent of his revenue for the four months.

6.  In spite of numerous requests made by the applicant before the authority responsible for the enforcement of judicial decisions, the judicial decision remained unenforced until October 2011.

7.  After the enactment of Law No. 87 (see paragraph 10 below), the applicant initiated proceedings seeking the acknowledgement of a breach of her right to have the judicial decision of 25 May 2009 enforced within a reasonable time due to the failure of State authorities to take measures for its enforcement. The applicant also claimed compensation for the pecuniary and non-pecuniary damage suffered.

8.  On 26 December 2011 the Rîşcani District Court partly upheld the applicant’s action and found the State responsible for the non-enforcement of the impugned judicial decision due to the lack of timely action by the body responsible for the enforcement. However, the court rejected the applicant’s claims for compensation of the pecuniary and non-pecuniary damage suffered and ruled that the simple finding of a violation constituted sufficient just satisfaction.

9.  On 10 April 2012 the Chişinău Court of Appeal rejected the applicant’s appeal and upheld the judgment of the lower court.

RELEVANT LEGAL FRAMEWORK

10.  According to Law No. 87 of 21 April 2011, anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time, is entitled to apply to a court for the acknowledgement of such a breach and to claim compensation.

According to section 1 of the law, the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law.

According to section 4 of the law, the courts are obliged to deal with applications lodged under the law within three months.

Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant.

Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants.

Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint.

THE LAW

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

11.  The applicant complained about the failure by the domestic authorities to enforce the judicial decision of 25 May 2009 within a reasonable time. The relevant provisions of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 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

12.  The Government submitted that the applicant had lost her victim status as a result of the courts’ rulings in the proceedings initiated by her under Law No. 87.

13.  The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III).

14.  In the instant case it is true that the domestic courts held that there had been a violation of the applicant’s right to have the judicial decision of 25 May 2009 enforced within a reasonable time. However, they did not afford any redress to the applicant in the form of pecuniary and non-pecuniary damage. In such circumstances, the Court considers that the applicant continues to be a victim of the violation complained of and therefore it dismisses the Government’s objection about her losing her victim status.

15.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

B.    Merits

16.  The Government argued that the applicant lost her victim status after the domestic courts ruled on her Law No. 87 action.

17.  The applicant disagreed.

18.  The Court recalls that 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 a case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The State’s responsibility for enforcement of a judgment against a private person extends no further than the involvement of State bodies in the enforcement procedures (see Fuklev v. Ukraine, no. 71186/01, § 67 and §§ 90-91, 7 June 2005). The Court’s only task is to examine whether the measures taken by the authorities were adequate and sufficient. In cases such as the present one, where the debtor is a private person, the State has to act diligently in order to assist a creditor in execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).

19.  The Court notes that the domestic courts acknowledged the breach of the applicant’s right to have the judicial decision of 25 May 2009 enforced within a reasonable time due to the lack of diligence of the authorities. The Court sees no reason to disagree with that finding. Nevertheless, after making that finding, the domestic courts failed to award the applicant any compensation. Indeed, despite finding the fault of the authorities for the non-enforcement of the final judicial decision in favour of the applicant, the courts rejected her claim for compensation of the damage suffered.

20.  Moreover, 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, among other authorities, Fuklev v. Ukraine, cited above and Spiridonov v. the Republic of Moldova [CTE], no. 41541/13, 23 June 2020).

21.  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 case. Having regard to its case-law on the subject, the Court considers that in the instant case the failure by the State authorities to take appropriate and timely measures in order to have the judicial decision in favour of the applicant enforced constitutes a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

II.      APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  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

23.  The applicant claimed 205 euros (EUR) in respect of pecuniary damage. She provided a detailed calculation of the default interest from the amount of the judgment debt which the domestic courts refused to award to her. The applicant also claimed EUR 1,500 for non-pecuniary damage.

24.  The Government contested the applicant’s claims and asked the Court to reject them.

25.  Considering the circumstances of the present case and making its own assessment, the Court awards the applicant the entire amount claimed for pecuniary damage and EUR 600 for non-pecuniary damage.

B.    Costs and expenses

26.  The applicant also claimed EUR 1,172 for the costs and expenses she had incurred before the Court. She submitted details concerning the amount claimed.

27.  The Government objected and asked the Court to dismiss the claim.

28.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the applicant EUR 600 for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;

4.      Holds

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

(i) EUR 205 (two hundred and five euros), plus any tax that may be chargeable, in respect of pecuniary damage;

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

(iii) EUR 600 (six 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President