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THIRD
SECTION
DECISION
Application no. 44746/08
Vasile BALAN
against Moldova
The
European Court of Human Rights (Third Section), sitting on 24 January
2012 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
regard to the above applications lodged on 1 September 2008,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Vasile Balan, is a Moldovan national who
was born in 1956 and lives in Pănăşeşti.
He was represented before the Court by Mr Lilian Osoian,
a lawyer practising in Chişinău. The Government were
represented by their Agent, Mr Vladimir Grosu.
I. THE CIRCUMSTANCES OF THE CASE
1. Domestic judgment in favour of the applicant and its
enforcement
- The facts of the case may be summarised as follows.
- On 28 September 2003 the applicant was accidentally
injured by an individual, D., sustaining an injury to his left thigh
bone. On an unspecified date the applicant instituted civil tort
proceedings against D., seeking a court order obliging D. to pay him
compensation for pecuniary damage.
- On 26 November 2004 the Străşeni District
Court ordered D. to pay the applicant 7,184 Moldovan lei (MDL) (the
equivalent of 435 euros (EUR) in compensation for pecuniary damage
and MDL 215 (EUR 13) for legal fees. This decision was final and an
enforcement warrant was issued. It has not been enforced to date.
2. The Olaru and
others pilot judgment and its consequences for similar
cases
- On
28 July 2009 the Court delivered the Olaru and others pilot
judgment (see Olaru and Others v. Moldova, nos. 476/07,
22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found,
inter alia, that the problem of non-enforcement of domestic
judgments awarding social housing to different categories of
individuals disclosed the existence of a “systemic problem”.
The Court ordered, inter alia, that the respondent State set
up an effective domestic remedy which secures adequate and sufficient
redress for non-enforcement or delayed enforcement of final domestic
judgments (see Olaru and others, cited above, § 58 and
point 4 of the operative part).
3. The creation of a new domestic remedy and subsequent
evelopments
- On
20 September 2011 the Moldovan Government informed the Court that on
1 July 2011 a new law (Law no. 87) entered into force, instituting a
remedy against the problem of non-enforcement of final domestic
judgments and against the problem of unreasonable length of
proceedings.
- On
29 September 2011 the Registry of the Court informed the applicant
and all other applicants in the same position of the new remedy,
asking whether they intended to make use of it within the six-month
time-limit set by Law No. 87 (see paragraph 9 below). The applicants’
attention was drawn to the fact that according to Article 35 § 1
of the Convention, the Court may only deal with a matter after all
domestic remedies have been exhausted and that failure to observe the
above rule could constitute a reason for declaring the application
inadmissible.
- By
a letter of 10 November 2011 the applicant informed the Court in
response that he was not intending to use the new remedy because it
was not effective. In particular, the applicant argued that even the
denomination of Law no. 87 suggested that it offered a remedy only
when a final judgment had not been enforced in a timely manner but
not when the judgment had not been enforced at all. In the
applicant’s view, the law did not provide for a mechanism to
trigger a rapid enforcement of an unenforced final judgment.
Moreover, the applicant submitted that it would be an excessive
burden for him to be requested to go back to the domestic courts and
attempt to exhaust the new remedy.
II. RELEVANT DOMESTIC LAW
- According
to Law no. 87 anyone who considers him or herself to be a victim of a
breach of the right to have a case examined or a final judgment
enforced within a reasonable time is entitled to apply to a court for
the acknowledgement of such a breach and compensation. According to
section 1 of the law, it should be interpreted and applied in
accordance with the national law, the Convention and the Court’s
case-law. According to section 4 of the law the courts are obliged to
deal with applications lodged under the law within three months.
Section 5 of the law states that if a breach of the right to have a
case examined or a final judgment enforced within a reasonable time
is found by a court, compensation for pecuniary damage, non-pecuniary
damage and costs and expenses have to be awarded to the applicant.
Section 6 of the law simplifies the procedure of enforcement of
judgments adopted under the law so as no further applications or
formalities should be required from the part of the applicants. Under
section 7 of the law all individuals who have complained to the
European Court of Human Rights that their right to a trial within a
reasonable time or to enforcement of a judgment within a reasonable
time has been violated may claim compensation in domestic courts
within six months of the entry into force of the new law, provided
that the European Court has not ruled on the admissibility and merits
of the complaint.
- At
the same time the Code of Civil Procedure was modified in such a
manner as to reduce the number of instances of appeal from two to one
and to waive court fees for such proceedings.
COMPLAINTS
- Referring
to Article 6 of the Convention and Article 1 of Protocol No. 1,
the applicant complained that the State had
failed to ensure the enforcement of the binding and enforceable
judgment in his favour.
THE LAW
- The
Court will determine first whether the applicant complied with the
rule of exhaustion of domestic remedies set out in Article 35 of the
Convention, which provides, in so far as relevant:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was
taken.”
I. GENERAL PRINCIPLES
- The
Court reiterates that the purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
– usually through the courts – the violations alleged
against them before those allegations are submitted to the Court.
Consequently, States are dispensed from answering for their acts
before an international body before they have had the opportunity to
put matters right through their own legal system. That rule is based
on the assumption, reflected in Article 13 of the Convention –
with which it has close affinity – that there is an effective
remedy available in respect of the alleged breach in the domestic
system. In this way, it is an important aspect of the principle that
the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights. (see,
among many other authorities, Handyside v. the United Kingdom,
7 December 1976, § 48, Series A no. 24; Akdivar and Others v.
Turkey, 16 September 1996, § 65, Reports of Judgments and
Decisions 1996 IV; and Fressoz and Roire v. France
[GC], no. 29183/95, § 37, ECHR 1999 I).
- Nevertheless,
the only remedies which Article 35 of the Convention requires to be
used are those that relate to the breaches alleged and at the same
time are available and sufficient. The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness (see Akdivar and Others, cited above, § 66,
and Dalia v. France, 19 February 1998, § 38, Reports
1998 I). In addition, according to the “generally
recognised principles of international law”, there may be
special circumstances which absolve the applicant from the obligation
to exhaust the domestic remedies at his disposal (see Van
Oosterwijck v. Belgium, 6 November 1980, § 36, Series A no.
40, A, and Akdivar and Others, cited above, § 67).
However, the existence of mere doubts as to the prospects of success
of a particular remedy which is not obviously futile is not a valid
reason for failing to exhaust domestic remedies (see Van
Oosterwijck , cited above, § 37; Akdivar and
Others, cited above, § 71, and Brusco v. Italy
(dec.), no. 69789/01, ECHR 2001 IX).
- An
assessment of whether domestic remedies have been exhausted is
normally carried out with reference to the date on which the
application was lodged with the Court. However, this rule is subject
to exceptions, which may be justified by the particular circumstances
of each case (see Baumann v. France, no. 33592/96, § 47,
22 May 2001, and Brusco, cited above).
- Relying
on the well-established principles set out above, the Grand Chamber
vigorously reiterated in a recent decision the subsidiary role of the
Convention system and the ensuing limits attached to the Court’s
function (see Demopoulos and Others v. Turkey
(dec.), nos. 46113/99 et al.,
§ 69, ECHR 2010 ...):
“69. It is primordial that the
machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights. This Court is
concerned with the supervision of the implementation by Contracting
States of their obligations under the Convention. The rule of
exhaustion of domestic remedies is therefore an indispensable part of
the functioning of this system of protection. (...) The Court cannot
emphasise enough that it is not a court of first instance; it does
not have the capacity, nor is it appropriate to its function as an
international court, to adjudicate on large numbers of cases which
require the finding of basic facts or the calculation of monetary
compensation – both of which should, as a matter of principle
and effective practice, be the domain of domestic jurisdictions.”
II. APPLICATION TO THE PRESENT CASE
- The
Court notes that the applicant refused to use the new remedy. While
disputing its effectiveness, he showed no doubt that it was available
to him. Indeed, the Court does not see any reason to doubt that the
applicant was entitled to bring his claims to domestic courts in
accordance with Law no. 87 as his complaints to the Court concern
delays in enforcement of a binding and enforceable judgment and
because his action in domestic courts did not
appear to be barred in any way by the time-limits set in section 7 of
the law.
- As
regards the effectiveness of the new remedy available to the
applicant, it is obvious from the text of Law no. 87 that when
deciding on claims lodged under it, domestic courts are required to
apply the Convention criteria in the same manner as the Court does.
In particular, as in the case of the Court’s judgments, the
domestic courts are entitled to find a breach of the right to speedy
enforcement of a final judgment and, where appropriate, to award
compensation in monetary form for pecuniary damage, non-pecuniary
damage and costs and expenses.
- In
view of these elements, the Court accepts that Law no. 87 was
designed, in principle, to address the issue of delayed enforcement
of judgments in an effective and meaningful manner, taking account of
the Convention requirements. It is true that domestic courts have not
been able yet to establish any stable practice under this Act within
several months since its entry into force (see Nogolica v. Croatia
(dec.), no. 77784/01, ECHR 2002-VIII). However, the Court does not
see at this stage any reason to believe that the new remedy could not
afford the applicant the opportunity to obtain adequate and
sufficient redress for his grievances or that it could not offer
reasonable prospects of success.
- The
Court further notes the applicant’s argument that the
new remedy is only designed to compensate for enforcement delays but
does not ensure the actual enforcement when the final judgment has
not been enforced. It recalls that a similar argument was considered
in Nagovitsyn and Nalgiyev v. Russia ((dec.), nos.
27451/09 and 60650/09, 23 September 2010) and dismissed for the
following reasons:
“33. The Court
reiterates that prevention of a violation is, in absolute terms, the
best solution in many spheres. A remedy designed to prevent
enforcement delays and to hasten the ultimate recovery of the
judgment debt would therefore be most desirable. Such a remedy would
offer an undeniable advantage over a remedy affording only
compensation, since it would prevent a finding of successive
violations in the same case and would not merely repair the breach a
posteriori, as does a compensatory remedy of the type
provided for under the Compensation Act. (see, mutatis mutandis,
Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
183-184, ECHR 2006 V). It is also true, at the same time, that a
remedy designed to expedite the enforcement of a judgment would not
provide adequate redress in numerous cases in which the enforcement
of judgments has already been delayed (ibid.). Finally, the
Contracting States are afforded some discretion as to which remedy
should be introduced in a given situation (see Kudła
v. Poland [GC], no. 30210/96, §§ 154-155,
ECHR 2000 XI, and Scordino (no. 1), cited above,
§§ 188).
34. The Court therefore
concludes, as it has repeatedly done in previous cases, that the
States can choose to introduce only a compensatory remedy in respect
of the non-enforcement of judgments without that remedy being
regarded as ineffective (see, mutatis mutandis, Mifsud v.
France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 VIII;
Scordino (no. 1), cited above, § 187, and
Burdov (no. 2), cited above, § 99). In the
Court’s view, the pecuniary compensation that may be awarded to
applicants under the Compensation Act would at least be capable of
providing adequate and sufficient redress for those violations of the
Convention which have allegedly occurred in their cases to date.
35. The Court is mindful
that an issue may subsequently arise whether the new compensatory
remedy would still be effective in a situation in which the defendant
State authority persistently failed to honour the judgment debt
notwithstanding a compensation award or even repeated awards made by
domestic courts under the Compensation Act. That was indeed a
hypothesis suggested by the applicants (see paragraph 14 above), but
the Court does not find it appropriate to anticipate such an event,
nor to decide this issue in abstracto at the present stage.”
- In
view of the similarity between Nagovitsyn and Nalgiyev and the
present case, the Court does not consider it necessary to depart from
its findings in that case. As in the above case, the Court does not
find it appropriate to anticipate what would happen if the principal
judgment is not enforced, nor to decide this issue in abstracto
at the present stage. Accordingly, the applicant’s objection is
dismissed on similar grounds.
- The
Court has paid attention next to the fact that the new remedy
only became available after the introduction of the present
application and that only exceptional circumstances may compel the
applicant to exhaust such a remedy. It observes that there have been
several cases concerning the length of proceedings in various
countries, in which such exceptional circumstances were found to
exist (see Brusco, cited above; Nogolica, cited above;
Andrášik and Others v. Slovakia (dec.), nos.
57984/00 et al., ECHR 2002-IX; Michalak v. Poland
(dec.), no. 24549/03, §§ 41-43, 1 March 2005;
Korenjak v. Slovenia, no. 463/03, §§ 63-71,
15 May 2007 and Nagovitsyn and Nalgiyev, cited above §
37). The Court stresses that the nature of the remedy and the context
in which it was introduced weighs heavily in its assessment of such
exceptions (see Scordino (no. 1), cited above, §
144).
- As
in the cases mentioned above, the Court considers it appropriate and
justified in the circumstances of the present cases to require that
the applicant uses the new domestic remedy introduced by Law no. 87.
This conclusion is supported by the following reasons.
- Regarding
the underlying context, the Court finds it significant that the
Moldovan Government has passed the legal reform introducing the new
domestic remedy in response to the Olaru pilot judgment under
the supervision of the Committee of Ministers. One of the aims of the
pilot judgment procedure was precisely to allow the speediest
possible redress to be granted at the domestic level to the large
numbers of people suffering from the structural problem of
non-enforcement and implicitly of length of proceedings (see Olaru,
cited above §59). In the Court’s view, it would be in line
with the spirit and the logic of the pilot judgment that the
applicants complaining about non-enforcement of final judgments and
length of proceedings now claim redress for their grievances in the
first place through the new domestic remedy.
- Furthermore, the Court attaches particular importance
to the transitional provision of Law no. 87 (section 7) which
reflects the Moldovan authorities’ intention to grant redress
at the domestic level to those people who had already applied to the
Court before the entry into force of the Act (compare Brusco,
cited above). In these circumstances, the continuation of the
proceedings before the Court in the applicant’s case and
hundreds of similar ones would be at odds with the principle of
subsidiarity, which is paramount in the Convention system. The
consideration of such cases mainly involves the establishment of
basic facts and calculation of monetary compensation – both of
which should, as a matter of principle and effective practice, be the
domain of domestic jurisdictions (see Demopoulos and others,
cited above, § 69). The Court reiterates that its task,
as defined by Article 19, would not be best achieved by taking such
cases to judgment in the place of domestic courts, let alone
considering them in parallel with the domestic proceedings (see,
mutatis mutandis,
E.G. v. Poland (dec.), no. 50425/99, § 27,
23 September 2008, and Burdov
(no. 2), cited above, § 127).
- While
the Court may exceptionally decide, for the sake of fairness and
effectiveness, to conclude its proceedings by a judgment in certain
cases of this kind, which remain on its list for a long time or have
already reached an advanced stage of proceedings (see, mutatis
mutandis, Olaru, cited above, § 61), it will
require, as a matter of principle, that all new cases introduced
after the pilot judgment and falling under Law no. 87 be submitted in
the first place to the national courts.
- However,
the Court’s position may be subject to review in the future
depending, in particular, on the domestic courts’ capacity to
establish consistent case-law under Law no. 87 in line with the
Convention requirements (see Korenjak, cited above, §
73). Furthermore, the burden of proof as to the effectiveness of the
new remedy in practice will lie with the respondent Government
(ibid.).
- Finally
the Court notes that the procedure under Law no. 87 before the first
instance court was limited in time to three months and that the
number of appeals was reduced to one. Unlike in other cases, the
proceedings under the new law will only take place before the
district courts and the Courts of Appeal. This shall contribute
significantly to the speediness of the proceedings. Moreover, it is
noted that no court fees are envisaged for such proceedings. In such
circumstances the Court is satisfied that going back to the domestic
courts does not constitute an excessive burden for the applicant and
for other applicants in a similar position.
- Having
regard to all the above considerations, the Court concludes that the
applicant was required by Article 35 § 1 to avail himself of the
new domestic remedy by pursuing the domestic proceedings under Law
no. 87. It notes, however, that such proceedings have not been
instituted at the national level by him.
- It
follows that his application must be rejected pursuant to Article
35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep Casadevall
Registrar President
