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FOURTH
SECTION
CASE OF
GRIVNEAC v. MOLDOVA
(Application
no. 35994/03)
JUDGMENT
STRASBOURG
9
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 Grivneac 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 L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 18 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35994/03) 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 Mihai Grivneac (“the
applicant”), on 12 September 2003.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicant complained that the failure to enforce the final judgment
of 6 October 2000 in his favour had violated his right to have
his civil rights determined by a court within a reasonable time, as
guaranteed by Article 6 of the Convention, and his right to peaceful
enjoyment of his possessions, as guaranteed by Article 1 of Protocol
No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
9 December 2004 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 1946 and lives in Chisinau.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant initiated court proceedings against a private individual.
On 6 October 2000 the Centru District Court awarded him 2,000 United
States Dollars (USD). No appeal was lodged and the judgment became
final and enforceable fifteen days later. He obtained an enforcement
warrant, which the bailiff did not enforce.
- In response to a request of the Centru District Court
dated 22 December 2000, the Chişinău Land Register
stated that the debtor did not have any real estate registered in
Chişinău.
- On 14 February 2001 a bailiff established that the
debtor did not live at the address indicated by the applicant and
that, accordingly, it was impossible to enforce the judgment.
- On
6 March 2001 the debtor's wife paid the applicant USD 1,000.
- On 16 March 2001 the Centru District Court ordered the
local police to determine the debtor's whereabouts. On an unknown
date a copy of the decision was sent to the local police station. On
3 February 2004 the police decided to take steps to locate the
debtor. According to the police, the debtor cannot be found.
- The
judgment of 6 October 2000 has not been enforced to date.
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
applicant complained that the failure to enforce the final judgment
of 6 October 2000 had violated his rights as guaranteed by Article 6
§ 1 of the Convention.
Article
6, in so far as relevant, 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 ....”
He
also complained that the same failure to enforce had violated his
rights under Article 1 of Protocol No. 1 to the Convention. This
Article 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.”
I. ADMISSIBILITY
The Government's preliminary objections
- The
Government submitted that the present application was inadmissible
ratione personae because the debtor was a private individual
and the State could not be held responsible for private debts when
the whereabouts of the debtor were unknown.
- The
Court considers that this objection is closely linked to the
substance of the applicant's complaints and that its examination
should therefore be joined to the merits of the case.
- The
Government also considered that the application had been lodged with
the Court outside the six-month time-limit established in Article 35
of the Convention.
- The
Court notes that the applicant's complaint does not concern any
alleged unfairness of the proceedings, but rather the continuing
failure to enforce the final judgment in his favour. It 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 Hornsby v. Greece judgment
of 19 March 1997, Reports of Judgments and Decisions 1997-II,
p. 510, § 40, and Prodan, cited above, § 52).
Therefore, since the judgment in the applicant's favour has not been
enforced to date, the six-month rule cannot be applied in respect of
this application.
Accordingly,
this objection must be rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the final judgment
in his favour had violated his rights under Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
- The
Government submitted that the authorities had taken all reasonable
steps to ensure the enforcement of the judgment and that the State
could not be held responsible for the debtor's inability to pay.
- The
Court reiterates that while the execution of a judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6, that does not mean that a State can be
held responsible for non-enforcement of a judgment debt which is due
to the insolvency of the debtor (see Sanglier v. France,
50342/99, § 39, 27 May 2003). However, when the authorities
are obliged to act in order to enforce a judgment and they fail to do
so, their inactivity can engage the State's responsibility (see
Scollo v. Italy, judgment of 28 September 1995, Series A
no. 315 C, § 44; Istrate v. Moldova,
no. 53773/00, §§ 55 and 61, 13 June 2006).
- In
the present case, the Court notes that after the judgment of
6 October 2000 had become final on 21 October 2000 the first
action by the authorities to ensure enforcement was taken only two
months later and was limited to verifying the debtor's ownership of
immovable assets only in Chişinău (see paragraph 8 above).
It took another two months for the bailiff to visit the debtor's home
to establish that he was no longer there (see paragraph 9 above) and
for the court to order that his whereabouts be determined (see
paragraph 11 above).
- Moreover, the Court notes that despite the order of
the Centru District Court, the police started searching for the
debtor only three years later (see paragraph 11 above). No
explanation was given for these delays, which gave ample opportunity
to the debtor to avoid the payment of his debt, such as selling any
movable property he may have had or any immovable property outside
Chişinău, transferring money from bank accounts to other
persons or leaving the country. While it is not known whether the
debtor had any assets at the time of the adoption of the final court
judgment, this lack of information is the direct result of the
failure of the authorities to act. In this respect, the Court
reiterates that “the State has a positive obligation to
organise a system for enforcement of judgments that is effective both
in law and in practice and ensures their enforcement without any
undue delay” (Fuklev v. Ukraine, no. 71186/01,
§ 84, 7 June 2005).
- It
follows that the State authorities did not take all reasonable steps
to enforce the judgment debt in the applicant's favour and
undermined, by their lack of action, any chances of enforcement at
present. In view of the above, the State's responsibility for the
failure to enforce the judgment debt is engaged (see Jenčová v.
Slovakia, no. 70798/01, § 29, 4 May 2006; Istrate,
cited above, §§ 55 and 61). Accordingly, the
Government's objection as to the Court's competence ratione
personae is to be rejected.
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 to the Convention if it is sufficiently established to be
enforceable (see Prodan, cited above, § 59). The
applicant had an enforceable claim by virtue of the final judgment of
6 October 2000, and therefore a “possession”. It finds
that the impossibility for the applicant to obtain the execution of
the judgment debt, resulting from the inaction of the State
authorities, constituted an interference with his right to peaceful
enjoyment of his possessions, as set out in the first sentence of the
first paragraph of Article 1 of Protocol No. 1 to the
Convention. By failing to take the necessary steps to have the
judgment debt of 6 October 2000 enforced the national authorities
prevented the applicant from enjoying or using the money. Having
regard to its findings concerning Article 6, the Court considers that
the Moldovan authorities failed to strike a fair balance between the
applicant's interests and the other interests involved.
- The
Court has found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention in
numerous cases concerning the failure to enforce final judgments
(see, among other authorities, Prodan, cited above, and
Lupacescu and Others v. Moldova, nos. 3417/02,
5994/02, 28365/02, 5742/03, 8693/03, 31976/03, 13681/03, and
32759/03, 21 March 2006).
- 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 those cases, that the
failure to enforce the judgment of 23 April 1999 constitutes a
violation of Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 to the Convention.
III. 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 clamed EUR 2,430 in compensation for the
damage caused to him by the failure to enforce the final court
judgment in his favour.
- The Government considered that the amount claimed was
excessive and unsubstantiated.
- The Court considers that the applicant must have been
caused a certain amount of stress and frustration as a result of the
non-enforcement of the judgment in his favour. However, the amount
claimed is excessive. Ruling on an equitable basis, the Court awards
the applicant EUR 1,500 under this head.
B. Costs and expenses
- The
applicant made no claims under this head.
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 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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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;
(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 9 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
