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THIRD
SECTION
CASE OF VARTIC AND OTHERS v. MOLDOVA
(Applications
nos. 12674/07, 13012/07, 13339/07, 13355/07 and 13368/07)
JUDGMENT
STRASBOURG
20
September 2011
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 Vartic and Others
v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ján Šikuta,
Luis López
Guerra,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in five applications (nos. 12674/07,
13012/07, 13339/07, 13355/07 and 13368/07) against the
Republic of Moldova and Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
five Moldovan nationals, Mr
Vasile Vartic, Mr Ion Ţurcan, Mr Ion Tudoreanu, Mrs Elena
Cerneţchi and Mrs Elena Luniov (“the
applicants”), on 3 and 15 January 2007, and on 1 March
2007.
2. The
applicants were represented by Mr A. Bîzgu. The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Grosu.
3. The
applicants alleged, in particular, that their right of access to a
court and their right to peaceful enjoyment of possessions as
guaranteed by Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 to the Convention had been violated by a failure to
enforce the final judgments in their favour.
- By
a partial decision on admissibility of 10 November 2009
the Court decided to give notice of the
applications to the Moldovan Government, along the lines of the pilot
judgment Olaru and Others v. Moldova, nos. 476/07,
22539/05, 17911/08 and 13136/07, 28 July 2009,
with regard to the alleged violations of Article 6 of the Convention
and Article 1 of Protocol No. 1 to the
Convention. On the
same date the Court decided to dismiss the remainder of the
complaints, in so far as they were
brought against Russian Federation, as
inadmissible.
- On
12 November 2010 and 20 March 2011 respectively the Government and
the applicants submitted observations on admissibility and merits.
- Thus,
the Court decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1970, 1961, 1959, 1965 and 1966
respectively and live in Chişinău.
- As
with the applicants in the pilot judgment of Olaru and
others, cited above, the applicants
in the instant cases complained of a breach of their rights
guaranteed under Article 6 of the Convention and under Article 1 of
Protocol No. 1 as a result of the authorities’ failure to
comply with final judicial decisions delivered by domestic courts in
their favour.
A. Application no. 12674/07
- By
a final judgment of 27 December 2006 the Supreme Court of Justice
ruled in favour of Mr Vartic and ordered the Moldovan Ministry of
Finance, together with the Ministry of Economy and Trade and the
Chişinău local authorities, to provide him with
accommodation. On 24 December 2007, the Chişinău local
council adopted a decision to provide Mr Vartic with an apartment
situated in Chişinău. Thus, the final judgment in favour of
Mr Vartic was enforced.
B. Applications nos. 13012/07 and 13339/07
- By
final judgments of 2 August 2006 the Supreme Court of Justice ruled
in favour of Mr Ţurcan and Mr Tudoreanu and ordered the Moldovan
Ministry of Finance, together with the Ministry of Economy and Trade
and the Chişinău local authorities, to provide them with
accommodation. On 24 December 2007, the Chişinău local
council adopted a decision to provide Mr Tudoreanu with an apartment
situated in Chişinău. On 21 February
2008, the Chişinău local council adopted a decision to
provide Mr Ţurcan with an apartment situated in Chişinău.
Thus, the final judgments in favour of Mr Ţurcan and Mr
Tudoreanu were enforced.
C. Applications nos. 13355/07 and 13368/07
- By
final judgments of 11 October 2006 the Supreme Court of Justice ruled
in favour of Mrs Cerneţchi and Mrs Luniov and ordered the
Moldovan Ministry of Finance, together with the Ministry of Economy
and Trade and the Chişinău local authorities, to provide
them with accommodation. On 21 February 2008, the Chişinău
local council adopted a decision to provide Mrs Cerneţchi and
Mrs Luniov each with an apartment situated in Chişinău.
Thus, the final judgments in favour of Mrs Cerneţchi and Mrs
Luniov were enforced.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law has been summarised in
Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004 III
(extracts) and in Olaru and Others v. Moldova, cited
above.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers at the outset that, in the interests of the proper
administration of justice, the applications registered under the
numbers 12674/07, 13012/07, 13339/07, 13355/07 and
13368/07 should be joined in accordance with Rule 42 § 1
of the Rules of Court, as there is common ground between the facts
giving rise to the two cases. As the legislative framework and the
administrative practices are similar, the Court is of the view that
they can best be analysed by joining the applications.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicants complained that the authorities’ failure to comply
with the binding and enforceable judgments of 27 December 2006,
2 August 2006 and 11 October 2006 had violated their right to a
court under Article 6 of the Convention and their right to the
peaceful enjoyment of their possessions under Article 1 of Protocol
No. 1, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time 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...”
A. Admissibility
- In
the Government’s view, the applicants had acted mala fides
in that they had failed to inform the Court about the enforcement of
the judgments of 27 December 2006, 2 August 2006 and 11 October 2006.
They also contended that by failing to lodge new complaints
concerning the delay in enforcement within six months from the
respective dates on which the final judgments had been enforced, the
applicants’ complaints were out of time and should be declared
inadmissible for failure to comply with the
six month rule along the lines of Şumila
and others v. Moldova (dec.),
nos. 41556/05, 42308/05,
33566/06, 33567/06, 33568/06 and 33570/06, 26 January 2010.
- The applicants’
representative failed to submit any comments in respect of this
matter.
- The
Court recalls that according to Rule 47 § 6 of the Rules of
Court applicants shall keep the Court informed of all circumstances
relevant to the application. It further recalls that an application
may be rejected as abusive under Article 35 § 3 of the
Convention, among other reasons, if it was knowingly based on untrue
facts (see Varbanov v. Bulgaria, no. 31365/96, § 36,
ECHR 2000-X; Popov v. Moldova (no. 1), no. 74153/01, §
48, 18 January 2005; Řehák v. Czech Republic
(dec.), no. 67208/01, 18 May 2004; and Kérétchachvili
v. Georgia (dec.), no. 5667/02, 2 May 2006).
- Incomplete
and therefore misleading information may also amount to an abuse of
the right of individual petition especially if the information
concerns the very core of the case and no sufficient explanation is
given for the failure to disclose that information (see Hadrabova
v. the Czech Republic (dec.), nos. 42165/02 and 466/03). The
Court points out that, according to Rule 47 § 6 of the Rules of
Court, applicants must keep the Court informed of all circumstances
relevant to the application and that, in the present case, they
should have given notice about the enforcement of the final judgments
in their favour. However, despite the failure to comply with this
requirement, in the circumstances of the present cases, the Court
does not consider that the applicants acted contrary to the purpose
of the right of individual petition, as provided for in Article 34 of
the Convention.
- As
for the Government’s argument that the applicants should have
raised new complaints concerning late enforcement of the final
judgments in their favour within six months from the date on which
the judgments had been enforced, the Court notes that compliance with
the six-month rule has to be assessed at the moment when the
applications were lodged with the Court. In the present case, unlike
in Şumila (cited above), the applications have been
lodged with the Court when the enforcement proceedings were still
pending. Thus, the Court rejects the Government’s argument.
- Further,
the Court notes that the applications 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
- The
applicants complained that the non-enforcement of the judgments in
their favour had violated their rights under Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
- The
Government submitted that the period of enforcement had been
reasonable, in the light of the fact that in order to provide the
applicants with accommodation the apartments had to be built in the
first place.
- The
Court notes that the judgments in favour of the applicants remained
unenforced for periods varying between twelve and nineteen months.
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 delays in enforcing final judgments (see,
among other authorities, Prodan v. Moldova, cited above, and
Luntre and Others v. Moldova, nos. 2916/02, 21960/02,
21951/02, 21941/02, 21933/02, 20491/02, 2676/02, 23594/02, 21956/02,
21953/02, 21943/02, 21947/02 and 21945/02, 15 June 2004).
- Having
examined the materials submitted to it, the Court considers that
there is nothing in the files which would allow it to reach a
different conclusion in the present cases. Accordingly, the Court
finds that the failure to enforce the judgments in favour of the
applicants within a reasonable time constitutes a violation of
Article 6 § 1 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
applicants’ representative claimed 50,000
euros (EUR) in respect of non-pecuniary damage suffered by all the
applicants.
- The Government disagreed with the amount claimed by
the applicants, arguing that it was excessive in light of the
case-law of the Court.
- The
Court considers that the applicants must have been caused a certain
amount of stress and frustration as a result of the non-enforcement
of the judgments. It awards Mr Vasile Vartic –
EUR 800, Mr Ion Ţurcan –
EUR 1,200, Mr Ion Tudoreanu – EUR 1,200, Mrs Elena Cerneţchi
– EUR 800 and Mrs Elena Luniov – EUR 800.
B. Costs and expenses
- The
applicants also claimed EUR 1,080 for the costs
and expenses incurred by each of them before the Court.
- The
Government considered the claimed amount as excessive.
- 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 each
applicant the sum of EUR 100 covering costs for the proceedings
before the Court.
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
- Joins the applications;
2. Declares the applications
admissible;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention,
- to Mr Vasile Vartic – EUR 800 (eight
hundred euros) for non-pecuniary damage,
- to Mr Ion Ţurcan - EUR
1,200 (one thousand two hundred euros), for
non-pecuniary damage,
- to Mr Ion Tudoreanu –
EUR 1,200 (one
thousand two hundred euros), for non-pecuniary
damage,
- to Mrs Elena Cerneţchi
– EUR 800 (eight
hundred euros), for non-pecuniary damage,
- to Mrs Elena Luniov –
EUR 800 (eight hundred
euros), for non-pecuniary damage,
(b) to
each applicant, EUR 100 (one hundred euros) for costs
and expenses incurred before the Court,
(c) that
the above amounts shall 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,
(d) 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 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
