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FOURTH
SECTION
CASE OF VACARENCU v. MOLDOVA
(Application
no. 10543/02)
JUDGMENT
STRASBOURG
27 March
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 Vacarencu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Stanislav
Pavlovschi,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Ledi
Bianku, judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having deliberated in private
on 4 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10543/02) 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 Tudor Vacarencu (“the applicant”),
on 16 November 2001.
- The
applicant was represented by Elena Botnari, a lawyer practicing in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- On
7 October 2003 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it 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, Mr Tudor Vacarencu, is a Moldovan national, who was born
in 1945 and lives in the village of Sociteni.
- In
the 1970s the applicant bought from the local authorities a house
that had been confiscated by the Soviet authorities from a third
person after the Second World War. In 1993 the former owner claimed
the house back and in accordance with Law no. 1225-XII, the local
council recognised his property right over the house. The applicant
was evicted from the house.
- At
the same time, the local council promised the applicant alternative
accommodation, a promise which was not kept.
- In
March 2000, the applicant brought civil proceedings against the local
council demanding compensation instead of the promised house.
- On
14 November 2000, the Ialoveni District Court found in favour of the
applicant and ordered the local council to pay him 52,797.00 Moldovan
Lei (MDL) (approximately 5,000 euros (EUR)).
- The
Local Council appeals were dismissed by a final judgment of the Court
of Appeal of 5 June 2001.
- The
applicant obtained an enforcement warrant which the bailiff failed to
enforce.
- In
May 2002, the judgment of 5 June 2001 was quashed following revision
proceedings and the proceedings reopened. The reopened proceedings
ended with a final judgment of 13 July 2004, by which the local
council was obliged to provide the applicant with accommodation. That
judgment has not been enforced to date.
- It
appears from the documents submitted by the parties that the
applicant has alternative accommodation in a neighbouring village,
where he lives with his family.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in Prodan v. Moldova,
no. 49806/99, § 31, ECHR 2004 III (extracts).
THE LAW
- The
applicant complained that the non-enforcement of the judgments in his
favour of 5 June 2001 and 13 July 2004 had infringed his rights under
Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
In a letter of 10 May 2004 he also complained under these Articles
that the judgment of 5 June 2001 had been abusively quashed in
May 2002.
Article
6 § 1 of the Convention, 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 ....”
Article 1
of Protocol No. 1 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.”
- The
applicant also complained that the failure to execute the judgments
of 5 June 2001 and 13 July 2004 infringed his rights under Article 3
and Article 8 of the Convention.
Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article
8 of the Convention reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
I. ADMISSIBILITY OF THE COMPLAINTS
- In so far as the complaint about the non-enforcement
of the judgment of 5 June 2001 is concerned, the Court notes that
that judgment was quashed in May 2002 as a result of revision
proceedings. Having regard to its case-law on the subject (see, among
other authorities, Timofeyev v. Russia, no. 58263/00,
§ 37, 23 October 2003) and to the fact that the period of
non-enforcement was only approximately ten months, the Court cannot
find that duration excessively long. Moreover, the applicant did not
indicate any factors which could be considered to have required
special diligence or speedier enforcement. Accordingly, the Court
finds that the complaint does not disclose any appearance of a
violation of the rights and freedoms set out under Article 6 and
under Article 1 of Protocol No. 1 (see, among other authorities,
Osoian v. Moldova (dec.), no. 31413/03, 28 February 2006).
Accordingly,
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
- As
to the complaint of abusive quashing of the judgment of 5 June 2001,
the Court notes that the applicant raised it for the first time in
his letter of May 2004, that is more than six months after the
quashing took place. Accordingly, this complaint must also be
declared inadmissible under Article 35 §§ 1 and 4 of the
Convention.
- In
so far as the applicant's complaints under Articles 3 and 8 of the
Convention are concerned, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 § 4.
- At
the same time the Court considers that the complaint concerning the
non-enforcement of the judgment of 13 July 2004 raises questions of
fact and law which are sufficiently serious that their determination
should depend on an examination of the merits, and no other grounds
for declaring it inadmissible have been established. The Court
therefore declares this complaint admissible. In accordance with its
decision to apply Article 29 § 3 of the Convention
(see paragraph 3 above), the Court will immediately consider the
merits of the complaint.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the judgment of 13
July 2004 in his favour had infringed his rights under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
- The
Government argued that the applicant had been granted a plot of land
in 1992. Moreover, the local council offered to provide him with help
in case he decided to build a house on that land. In the Government's
view, the local council took all reasonable steps to enforce the
judgment of 13 July 2004.
- The
issues raised under these Articles are identical to those found to
give rise to violations of those Articles in the judgments in the
cases of Prodan v. Moldova (cited above, §§ 56 and
62) and Sîrbu and Others v. Moldova (nos. 73562/01,
73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, §§ 27
and 33, 15 June 2004).
- The
Court cannot agree with the Government that the local council took
reasonable steps to enforce the judgment of 13 July 2004.
Accordingly, the Court finds, for the reasons detailed in the above
judgments, that the failure to enforce the final judgment of 13 July
2004 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 claimed EUR 10,283 in respect of
pecuniary damage suffered as a result of the non-enforcement of the
final judgment in his favour and EUR 68,550 in respect of
non-pecuniary damage.
- The
Government considered the amount claimed by the applicant excessive
and unreasonable.
- The
Court considers that the applicant must have suffered pecuniary and
non pecuniary damage as a result of the non-enforcement of the
judgment of 13 July 2004. Taking into account the line of approach in
Prodan (cited above, § 73), and the circumstances of
the present case, the Court awards the applicant EUR 12,000.
B. Costs and expenses
- The
applicant claimed EUR 875 for the costs and expenses incurred before
the Court.
- The
Government disagreed and argued that the amount claimed was
excessive.
- The
Court considers the amount to be reasonable and awards it in full.
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 admissible the complaints under Article
6 § 1 and under Article 1 of Protocol No. 1 to the Convention
concerning the non-enforcement of the judgment of 13 July 2004 and
inadmissible the remainder of the application;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the
non-enforcement of the judgment 13 July 2004;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the same
non-enforcement;
- 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 12,000 (twelve thousand euros) in respect of
pecuniary and non-pecuniary damage and EUR 875 (eight hundred and
seventy-five euros) in respect of costs and expenses,
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 amounts 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 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
