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THIRD
SECTION
CASE OF ŞTEFAN ANGELESCU AND OTHERS v. ROMANIA
(Applications
nos. 30198/04, 30200/04, 3484/05 and 36298/07)
JUDGMENT
STRASBOURG
28 June
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Ştefan
Angelescu and Others v. Romania,
The
European Court of Human Rights (Third Section), sitting as a
Committee composed of:
Ján
Šikuta,
President,
Ineta
Ziemele,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 30198/04, 30200/04,
3484/05 and 36298/07) against Romania lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by four Romanian
nationals. The details of the applicants including the introduction
date of their applications and the date of their communication to the
Government are indicated in the table enclosed as an annex to this
judgment. The Romanian Government (“the Government”) were
represented by their Agent, Mr Răzvan-Horaţiu Radu, of
the Ministry of Foreign Affairs.
- In
accordance with Protocol No. 14, after informing the respondent
Government, the applications were assigned to a Committee of three
Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applications concern the non-enforcement of final judgments rendered
in disputes between the applicants and the State authorities
in charge with the calculation and payment of retirement benefits.
- By
final judgments delivered by the domestic courts between 19 March
2002 and 3 March 2005, the applicants’ civil actions were
admitted and the relevant pension authorities were obliged to
recalculate the applicants’ pensions so as to include
additional benefits (all applications) and to issue new retirement
decisions in this respect (all applications except application no.
36298/07 where the recalculation could have been implemented without
necessarily issuing a new decision). In spite of the applicants’
undertakings to have them enforced, such as instituting compulsory
enforcement proceedings and writing numerous petitions to the
relevant authorities, all judgments remained not enforced or were
enforced with delay (application no. 3484/05). The details as to the
subject matter of the cases, reference dates for the start and end of
the proceedings and the delays in the enforcement are set out in the
appended table.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN DOCUMENTS
A. Relevant domestic law and practice
- The relevant domestic law concerning the execution of
final judgments, namely excerpts of the Civil Procedure Code and Law
no.188/2000 on the powers and functions of bailiffs, is summed up in
the Court’s judgment in the case of Topciov v. Romania
((dec.), no. 17369/02, 15 June 2006).
B. Parliamentary Assembly of the Council of Europe
Resolution 1787 (2011) entitled: Implementation of the judgments of
the European Court of Human Rights
- On
26 January 2011 the Parliamentary Assembly of the Council of Europe
adopted this Resolution by which it notes with grave concern the
continuing existence, in some of the member states, of major systemic
deficiencies which cause large numbers of repetitive findings of
violations of the Convention. In this context the Assembly urged
Romania to tackle with priority the problem of non-enforcement of
final court decisions.
THE LAW
I. JOINDER OF THE APPLICATIONS
- Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicants complained that the non-enforcement of the final judgments
in their favour had infringed their right to access to court
guaranteed by Article 6 § 1 of the Convention and also their
right to property as provided by Article 1 of Protocol No. 1 to the
Convention. Insofar as relevant, these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by a
... tribunal”
Article 1 of Protocol No. 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.
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.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government considered that the Romanian authorities had taken the
necessary steps to enforce the final judgments delivered in the
applicants’ cases.
- In
application no. 30198/04 the Government stated that since the
recalculation of the applicant’s retirement benefits as ordered
by the domestic courts gave rise to a lower pension than the
applicant already received, the pension authority decided to continue
paying the former pension without issuing a new retirement decision.
The applicant contested this argument mentioning that an important
increase in the pension amount was found by the expert report
submitted during the domestic court proceedings finalised with the
outstanding judgment.
- In
application no. 30200/04 the Government alleged that a new retirement
decision was issued to the applicant as ordered by the domestic
court. However, they did not submit copies of the said document. The
applicant contested this statement.
- In
application no. 3484/05 the Government admitted the delayed
enforcement of the final judgment but mentioned that it was justified
by the fact that the pension authorities had a different view on the
recalculation of the applicant’s pension than the one held by
the domestic court. The applicant stated that this was not a
reasonable justification for the delayed enforcement.
- In
application no. 36298/07 the Government stated that the judgment of 1
September 2004 had been fully enforced by 15 July 2005 and therefore
the judgment of 30 November 2006 was left without a scope. The
applicant contested this statement underlining that the judgment of
30 November 2006, which was subsequent to the payment of 15 July
2005, assessed the updated circumstances invoked by the Government
and held that the authorities did not fulfil entirely their
obligation to enforce the judgment of 1 September 2004.
2. The Court’s assessment
- The
Court reiterates that the execution of a judgment given by any court
must be regarded as an integral part of a “hearing” for
the purposes of Article 6 (see Hornsby v. Greece, no.18357/91,
§ 40, 19 March 1997). The Court also recalls its extensive
case-law concerning the non-enforcement or the delayed enforcement of
final domestic judgments (see amongst many other cases Tacea v.
Romania, no. 746/02, 29 September 2005; Dragne and Others v.
Romania, no. 78047/01, 7 April 2005; Orha v. Romania,
no. 1486/02, 12 October 2006, or Metaxas v. Greece, no.
8415/02, 27 May 2004).
- The
Court has frequently found violations of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1 in cases raising
issues similar to the one in the present applications (see Dragne
and Others, cited above, or Musteaţă and Others v.
Romania, nos. 67344/01, 10772/04, 14819/04, 14025/05 and
23596/06, 6 October 2009).
- The
Court also notes that the judgments in the present cases ordered the
retirement authorities to recalculate the applicants’ pensions
which in all cases was held by the domestic courts to have as a
result a higher amount of pension. The Court therefore considers that
the respective judgments constitute “possessions” within
the meaning of Article 1 of Protocol No. 1 to the Convention (see
Gavrileanu v. Romania, no. 18037/02, § 52,
22 February 2007).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach in the present cases a different conclusion
than the one adopted in the cases mentioned at paragraphs 15 and 16
above. Taking into account the complexity of
the enforcement, the parties’ behaviour and the nature of the
awards, the authorities have not deployed all necessary
efforts to enforce fully and in due time the judgments in the
applicants’ favour.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and of Article 1 of Protocol No. 1 in all applications.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants also complained under Article 6 § 1 of the Convention
of the unfairness of various proceedings and of the
non-enforcement
of various other domestic judgments (applications nos. 30198/04,
30200/04 and 3484/05). One of the applicants also complained under
Article 1 of Protocol No. 1 taken together with Article 14 of the
Convention of being discriminated against compared to other persons
in a similar situation who received higher pensions (application
no. 36298/07).
- However,
in the light of all 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 or its Protocols.
- Therefore,
it follows that this part of the applications is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
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
applicants have submitted the following claims in respect of
pecuniary damage (the additional retirement benefits the applicants
believe they should be awarded, as calculated by them in accordance
with the domestic court orders) and non-pecuniary damage:
|
No.
|
Application
no.
|
Pecuniary
damage
|
Non-pecuniary
damage
|
|
1.
|
30198/04
|
32,500 euros (EUR)
|
–
|
|
2.
|
30200/04
|
41,250 EUR
|
–
|
|
3.
|
3484/05
|
65,000 EUR
|
7,000 EUR
|
|
4.
|
36298/07
|
Not quantified
|
23,700 EUR
|
- The
Government contested these claims as unfounded since no causal
link between the violations alleged and the pecuniary and/or
non-pecuniary damages claimed existed.
- With
respect to the pecuniary damages, the Court considers that, in so far
as the judgments marked as outstanding in the appended table remain
in force, the State’s obligation to enforce them cannot be
disputed. Accordingly, the applicants are still entitled to the
enforcement of those judgments. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50),
§
12, 26 October 1984). The Court finds that this principle also
applies in the present cases, having regard to the violation found.
It therefore considers that the Government must secure, by
appropriate means, the enforcement of the outstanding judgments which
will also lead to the retroactive payment to the applicants of the
differences in pension calculated according to the procedures set
forth by the national legislation (see Musteaţă and
Others, cited above, § 42).
- The
Court further considers that as a result of the delayed enforcement
of the judgments the applicants have sustained
non-pecuniary
damage. Having regard that two of the applicants have failed to claim
non-pecuniary damage, the Court makes no award in this respect for
applications nos. 30198/04 and 30200/04.
- In
conclusion, ruling on an equitable basis, the Court awards the
applicants the following amounts:
|
No.
|
Application
no.
|
Pecuniary
damage
|
Non-pecuniary
damage
|
|
1.
|
30198/04
|
–
|
–
|
|
2.
|
30200/04
|
–
|
–
|
|
3.
|
3484/05
|
–
|
2,400 EUR
|
|
4.
|
36298/07
|
–
|
8,000 EUR
|
B. Costs and expenses
- The
applicants did not submit any claims for costs and expenses; hence
the Court makes no award in this respect.
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
- Decides to join the applications;
- Declares admissible the complaints under Article
6 § 1 and Article 1 of Protocol No. 1 concerning the full and
timely enforcement of the judgments referred to in the appended table
in respect of all applications and the remainder of the applications
inadmissible;
3. Holds that there has been a violation of Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention;
- Holds that the respondent State shall ensure, by
appropriate means, within three months, the enforcement of the
judgments of 11 May 2004 and 8 October 2003 of the Bucharest County
Court (applications nos. 30198/04 and 30200/04) and the
judgments of 1 September 2004 of the Bucharest County Court and 30
November 2006 of the Bucharest District Court (application no.
36298/07);
- Holds
(a) that
the respondent State is to pay the applicants in respect of
non-pecuniary damage, within the same three months, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
2,400 (two thousand four hundred euros) plus any tax that may be
chargeable to the applicant in application no. 3484/05;
(ii) EUR
8,000 (eight thousand euros) plus any tax that may be chargeable to
the applicant in application no. 36298/07;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena
Tsirli Ján Šikuta
Deputy Registrar President
ANNEX
|
No.
|
Application no./
date
of lodging/date of communication to the Government
|
Name
of applicant
|
Date
of final judgment
|
Order
made by Court
|
Delay
in
enforcement
|
|
1.
|
30198/04
6
August 2004/
24 September 2009
|
Ştefan ANGELESCUborn
on
3 September 1946, residing in Dărmăneşti.
|
Judgment of 11 May 2004 of the Bucharest
County Court upheld by the 9 December 2004 judgment of the
Bucharest Court of Appeal.
|
Revokes the retirement decision no.
187836/29 November 2000 and obliges the Bucharest Retirement
Benefits House to issue a new retirement decision taking into
account an additional period worked by the applicant.
|
75
months
(outstanding)
|
|
2.
|
30200/04
21
September 2004/
24 September 2009
|
Floarea ANGELESCUborn
on
30 May 1947, residing in Bucharest, represented by Ştefan
ANGELESCU.
|
Judgment of 8 October 2003 of the Bucharest
County Court upheld by the 19 March 2004 judgment of the
Bucharest Court of Appeal.
|
Revokes the retirement decision no.
191100/13 April 2001 and obliges the Bucharest Retirement
Benefits House to issue a new retirement decision taking into
account an additional period worked by the applicant.
|
83 months
(outstanding)
|
|
No.
|
Application
no./
date
of lodging/date of communication to the Government
|
Name
of applicant
|
Date
of final judgment
|
Order
made by Court
|
Delay
in
enforcement
|
|
3.
|
3484/05
16
November 2004/ 8 December 2008
|
Vasile DRĂGOI
born on
4 December 1945, residing in
Constanţa.
|
Judgment of 23 November 2004 of the
Constanţa County Court. The judgment became final as it was
not appealed against by the parties.
|
Obliges the Constanta Retirement Benefits
House to recalculate the applicant’s pension and to modify
the retirement decision no. 238733 of 28.03.2001 so as to take
into account an additional period worked by the applicant.
|
38 months
(enforced
on
12
February
2008)
|
|
4.
|
36298/07
8 June 2007/
14 January 2009
|
Gheorghe POPESCU
born on
14 December 1939, residing in Bucharest.
|
a) Judgment of 1 September
2004 of the Bucharest County Court upheld by the 3 March 2005
judgment of the Bucharest Court of Appeal;
b) Judgment of 30 November
2006 of the Bucharest District Court.
|
a) Obliges the Ministry of
Administration and Interior to recalculate the applicant’s
pension taking into account the adjustments provided by law and
to pay the applicant the difference starting with the year 2002;
b) Obliges the Ministry of
Administration and Interior to pay the applicant penalties of 40
LEI for each day of delay in the enforcement of the 1 September
2004 judgment.
|
a) 72 months
(outstanding)
b) 51 months
(outstanding)
|
