GOTCU AND OTHERS v. ROMANIA - 35430/03 [2011] ECHR 1456 (27 September 2011)

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URL: http://www.bailii.org/eu/cases/ECHR/2011/1456.html
Cite as: [2011] ECHR 1456

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THIRD SECTION

CASE OF GOTCU AND OTHERS v. ROMANIA

(Applications nos. 35430/03, 21472/04, 44361/05,

472/08, 9421/08 and 18304/08)

JUDGMENT

STRASBOURG

27 September 2011

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

In the case of Gotcu 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 6 September 2011,

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

PROCEDURE

The case originated in six applications (nos. 35430/03, 21472/04, 44361/05, 472/08, 9421/08 and 18304/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Romanian nationals (“the applicants”). 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.

2. In accordance with Protocol No. 14 to the Convention, 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 or the delayed enforcement of final judgments rendered in disputes between the applicants and the State authorities.

By final judgments delivered by the domestic courts between 6 March 2002 and 19 December 2006, the applicants’ court actions were admitted and the relevant state authorities were ordered to fulfil various obligations towards them. 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 unenforced or were enforced with delay. 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

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

6. 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 or the delayed 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

In application no. 35430/03 the Government raised the preliminary objection that the applicant lacks victim status on two grounds: firstly because it was the applicant’s commercial company who was party to the domestic proceedings and not the applicant in her own name and secondly because, in any event, the judgment was duly enforced.

The applicant maintained that she has victim status.

Based on the evidence in the file, the Court considers that with respect to the first ground the objection is not founded and shall be dismissed, in so far as the applicant was the only shareholder and administrator of the company and there were no conflicting interests between her and the company (see, a contrario, Agrotexim and Others v. Greece, no. 14807/89, §§ 62-72, 24 October 1995). The Court notes that the second ground invoked by the Government in support of the preliminary objection is linked to the merits of the complaint regarding the delayed enforcement, and, therefore it shall be examined at the same time as the merits of the mentioned complaint.

10. Therefore, the Court notes that the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in all 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 Government considered that the Romanian authorities had taken the necessary steps to enforce in due time the final judgments delivered in the applicants’ cases.

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; 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, Gavrileanu v. Romania, no. 18037/02, § 52, 22 February 2007, or Musteaţă and Others v. Romania, nos. 67344/01, 10772/04, 14819/04, 14025/05 and 23596/06, 6 October 2009).

Having examined the materials 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 in the above paragraphs. 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 dismiss the Government’s preliminary objection in application no. 35430/03 and 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 in applications 44361/05 and 472/08 also complained under Article 6 § 1 of the Convention of the unfairness and the excessive length of the proceedings and under Article 6 § 1 in conjunction with Article 14 and Article 1 of Protocol No. 12 to the Convention of being discriminated in the enjoyment of the right to a fair trial.

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’ claims for pecuniary and non-pecuniary damage are described in the table below:

Application no.	Pecuniary damage (EUR)	Non-pecuniary damage (EUR)
35430/03	43,500 (the applicant’s company loss of profit due to the delayed enforcement)	5,000
21472/04	30,000 (the sale price collected by the authorities)	25,000
44361/05	11,500 (loss of salary due to loss of chance of promotion during the non enforcement period)	not quantified
472/08	–	10,000
9421/08	156,118 (loss of value of the applicant’s building as resulted from the expert report) 1,956/month (loss of profit due to the vicinity to the ruined building)	300,000
18304/08	40,000 (loss of use of the land)	20,000

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. In addition, the Government submitted that the claims concerning the loss of profit, loss of salary or loss of use were speculative and they were not supported by expert reports. In application no. 9421/08 the Government submitted that the loss of value of the building, as evaluated by an expert report, was EUR 6,507.7.

With respect to the pecuniary damages, the Court firstly 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.

Secondly, the Court observes that the question of whether the applicants (in all applications except application no. 9421/08) would have been able to obtain the amounts alleged in respect of pecuniary damage, had the national authorities properly enforced the judgments in their favour, is a matter of speculation in the circumstances of the cases (see Chis v. Romania,
no. 3360/03, § 64, 14 September 2010). The Court therefore rejects these pecuniary claims.

With respect to application no. 9421/08, the Court considers that, should the outstanding judgment not be enforced by the respondent State within three months from the date of the present judgment, the payment of compensation for the loss of value of the applicant’s building, would put the applicant as far as possible in a situation equivalent to the one in which it would have been had there not been a breach of Article 6 § 1 and Article 1 of Protocol No. 1. As to the determination of the amount due for compensation, the Court notes the considerable discrepancy between the figures advanced by the parties’ experts. Therefore, in view of the information in its possession concerning immovable property prices in Bucharest, the Court holds that, should the respondent State fail to enforce the outstanding judgment, it shall pay the applicant EUR 35,000 in respect of pecuniary damage representing the loss of value of the applicant’s building due to the non-enforcement of the final judgment in its favour.

The Court further considers that as a result of the delayed enforcement of the judgments the applicants have sustained non-pecuniary damage.

In conclusion, ruling on an equitable basis, the Court awards the applicants the following amounts:

Application no.	Pecuniary damage (EUR)	Non-pecuniary damage (EUR)
35430/03	–	2,600
21472/04	–	6,200
44361/05	–	2,600
472/08	–	2,600
9421/08	35,000	5,200
18304/08	–	5,200

B. Costs and expenses

The applicant in application no. 44361/05 also claimed costs and expenses incurred before the domestic courts and before this Court without quantifying them or submitting any supporting documents.

The Government invited the Court to dismiss this request.

The Court observes that the applicant has not substantiated his claim in any way, as he has neither quantified his costs nor submitted any supporting documents. Accordingly, the Court does not award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).

The applicant in application no. 9421/08 also claimed EUR 720 for the costs and expenses incurred before this Court, broken down as follows: EUR 420 for lawyer’s fee, EUR 285 for the expert report and EUR 35 for postal, photocopies and telephone costs. Copies of invoices were submitted in support of these claims.

The Government contested these claims. In particular, they submitted that with respect to the postal, photocopies and telephone costs, only EUR 18 were supported by evidence.

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 information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 700 covering costs under all heads.

The reminder of 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;

Joins to the merits the Government’s preliminary objection in application no. 35430/03 concerning the applicant’s lack of victim status and dismisses it;

3. 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;

Holds that there has been a violation of Article 6 § 1 of the Convention and of 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 outstanding judgments of 13 April 1995 of the Neamţ District Court (application no. 21472/04), 21 June 2005 of the Bucharest District Court (application no. 9421/08) and 23 May 2006 of the Olt County Court (application no. 18304/08);

6. Holds

(a) that, should the outstanding judgment not be enforced, the respondent State is to pay the applicant in application no. 9421/08, within three months, EUR 35,000 (thirty-five thousand euros) to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary damages;

(b) that the respondent State is to pay the applicants in respect of
non-pecuniary damage, within 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 2,600 (two thousand six hundred euros) plus any tax that may be chargeable to the applicant in application no. 35430/03;

(ii) EUR 6,200 (six thousand two hundred euros) plus any tax that may be chargeable to the applicant in application no. 21472/04;

(iii) EUR 2,600 (two thousand six hundred euros) plus any tax that may be chargeable to the applicant in application no. 44361/05;

(iv) EUR 2,600 (two thousand six hundred euros) plus any tax that may be chargeable to the applicant in application no. 472/08;

(v) EUR 5,200 (five thousand two hundred euros) plus any tax that may be chargeable to the applicant in application no. 9421/08;

(vi) EUR 5,200 (five thousand two hundred euros) plus any tax that may be chargeable to the applicant in application no. 18304/08;

(c) that the respondent State is to pay the applicant in application
no. 9421/08, within three months, EUR 700 (seven hundred euros) to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, in respect of costs and expenses;

Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Jan 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.	35430/03 12 September 2003 5 May 2008	Andriana GOTCU born on 28 August 1948, residing in Iaşi, represented by Mr Mihai GOTCU, lawyer practising in Iaşi.	Judgment of 22 November 2000 of the Iaşi District Court upheld by the 6 March 2002 judgment of the Supreme Court of Justice.	Quashes the contravention reports issued against the applicant’s company and obliges the Iaşi Police to return the confiscated goods or their value in money and to reimburse the applicant’s company the court fees in a total amount of 40,000,000 lei.	35 months (fully enforced on 28 February 2005)
2.	21472/04 28 April 2004 5 May 2008	Bernard MARTIN born on 30 October 1945, residing in Piatra Neamţ.	Judgment of 13 April 1995 of the Piatra Neamţ District Court.	Obliges the Neamţ Public Domain Agency to conclude a purchasing contract with the applicant for the apartment no. 13 located in Piatra Neamţ, Privighetorii street, which he occupied as a tenant.	192 months (outstanding)
3.	44361/05 18 November 2005 20 May 2009	Nicolae ŞELĂU born on 3 November 1946, residing in Orşova.	Judgment of 17 June 2003 of the Mehedinţi County Court upheld by the 14 July 2004 judgment of the Craiova Court of Appeal.	Quashes the dismissal decision of 4 January 2002 and obliges the Bucharest University to reinstate the applicant in his former position and to pay his salary rights, indexed according to the inflation rate, due from the date of his dismissal and until the date of his reinstatement.	32 months (fully enforced on 3 April 2007)
4.	472/08 13 December 2007 24 April 2009	Ion PAVEL born on 2 November 1952, residing in Medgidia.	Judgment of 19 December 2006 of the High Court of Justice.	Obliges the State Secretariat for the Problems of the December 1989 Revolutionaries to issue a certificate attesting the applicant was a “Fighter in the December 1989 Revolution – Wounded” (certificate which gives the applicant the right to a series of pecuniary benefits as provided by Law no. 341/2004).	34 months (fully enforced on 17 November 2009)
5.	9421/08 4 February 2008 14 January 2009	S.C. “TOM CONSULT INTERMED” S.R.L. with headquarters in Bucharest, represented by Mr Grigore TOMESCU, lawyer practising in Bucharest.	Judgment of 21 June 2005 of the Bucharest District Court upheld by the 5 October 2006 judgment of the Bucharest Court of Appeal.	Obliges the Bucharest Administration of Immovable Property to consolidate and sanitize a building in order to avoid producing damages to the neighbouring building belonging to the applicant.	55 months (outstanding)
6.	18304/08 1 March 2008 24 April 2009	Sorin George ŞTEFĂNESCU born on 8 June1964, residing in Bucharest, represented by Mr Adrian GHIMIŞI, a lawyer practising in Bucharest.	Judgment of 23 May 2006 of the Olt County Court upheld by the 26 September 2006 judgment of the Craiova Court of Appeal.	Obliges the Caracal Town Hall to issue a town planning certificate with respect to a parcel of land owned by the applicant.	55 months (outstanding)

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You are here: BAILII >> Databases >> European Court of Human Rights >> GOTCU AND OTHERS v. ROMANIA - 35430/03 [2011] ECHR 1456 (27 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1456.html Cite as: [2011] ECHR 1456