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FOURTH SECTION
CASE OF LOZAN AND OTHERS v. MOLDOVA
(Application no. 20567/02)
JUDGMENT
STRASBOURG
10 October 2006
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 Lozan and Others v. Moldova,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 19 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 20567/02)
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 Moldovan
nationals, Mr Aurel Lozan, Mr Vitalie Samoil and Mrs Liliana
Sângerean (“the applicants”), on 11 March 2002.
- The applicants were represented by Mr
Vladislav Gribincea, acting on behalf of the “Lawyers
for Human Rights”, a non-governmental organisation based in
Chişinău.
- The Moldovan Government (“the Government”)
were represented by their Agent, Mr Vitalie Pârlog.
- The applicants complained that the failure to enforce
the judgment of 4 November 1999 of the Centru District Court,
which became final and enforceable on 25 October 2000, violated their
right of access to court guaranteed by Article 6 of the Convention.
- The application was allocated to the Fourth Section of
the Court. On 7 October 2003 a Chamber of that Section decided
to communicate 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 applicants and the Government
each filed observations on admissibility, merits and just
satisfaction.
- On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1). This case was assigned to the newly
composed Fourth Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants are Moldovan nationals born in 1969,
1972 and 1965 respectively. They all live in Chişinău.
- The applicants were employees of the Academy of
Sciences of Moldova (“the Academy”), the State’s
highest scientific institution. They lived in separate rooms in a
dormitory. The rooms had been allocated to them during their
doctorate studies with the Academy between 1990 and 1997.
- Following a Chişinău Local Council decision
of 16 May 1996, by which the legal status of the building was changed
from a dormitory to an apartment building, the Academy refused to
issue occupancy vouchers in respect of the applicants’
apartments and to sign tenancy agreements
with them.
- On an unspecified date in 1999 the applicants brought
an action against the Academy, seeking the creation of legal
tenancies in their favour (see §§ 23 and 24 below).
Notwithstanding the initiation of proceedings against the Academy and
the fact that it had refused to sign tenancy
agreements with the applicants, they continued to live in
their flats, although Mr Aurel Lozan was periodically on mission
abroad between 2001 and 2003.
- By a judgment of 4 November 1999 the Centru District
Court ruled in favour of the applicants and ordered the Academy to
grant them legal tenancies. The Academy appealed.
- On 31 January 2000 the Chişinău Regional
Court upheld the Academy’s appeal, quashed the judgment of 4
November 1999 and dismissed the applicants’ action. The
applicants lodged an appeal on points of law with the Court of
Appeal.
- By a final judgment of the Court of Appeal of 6 June
2000 the applicants’ appeal on points of law was dismissed.
- Following a request from the applicants, on 18 August
2000 the Prosecutor General’s Office lodged with the Supreme
Court of Justice a request for annulment of the judgments of 31
January 2000 and 6 June 2000.
- By a final judgment of 25 October 2000 the Supreme
Court of Justice upheld the Prosecutor General’s request for
annulment, quashed the judgments of the Chişinău Regional
Court and of the Court of Appeal and upheld the judgment of the
Centru District Court of 4 November 1999, ordering the Academy to
grant the applicants legal tenancies. This would have permitted the
applicants to sub-let their flats.
- Following a request from the Academy, on an
unspecified date in 2001 the Prosecutor General’s Office lodged
with the Supreme Court of Justice a request for annulment of its
judgment of 25 October 2000.
- On 25 June 2001 the Plenary of the Supreme Court of
Justice dismissed the Prosecutor General’s request for
annulment.
- On 4 January and 20 February 2001 the applicants
requested the Bailiff to enforce the judgment of 4 November 1999 and
to oblige the Academy to grant the applicants legal tenancies.
- On 5 December 2001 the Bailiff made an official report
about the failure of the Academy to comply with the judgment of 4
November 1999.
- On 4 December 2003, after the present application had
been communicated to the Government, the Academy complied with the
judgment of 4 November 1999 and issued the applicants with occupancy
vouchers in respect of their flats. The applicants sent written
declarations to the Government’s Agent, confirming that the
judgment of 4 November 1999 had been enforced and that they did not
have any pecuniary and non-pecuniary claims against the Academy.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law concerning the enforcement
of a final judgment was set out in Sîrbu and Others v.
Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01
and 73973/01, § 12, 15 June 2004.
Implementation of the right to a “social tenancy”
- The MSSR Housing Code (Law No.
306 of 3 June 1983, still in force) provides that Moldovan citizens
are entitled to possess flats owned by the State or municipal
authorities or other public bodies (sections 1 and 6).
- A decision on granting a flat
has to be implemented by issuing the citizen with an occupancy
voucher (ordin de repartiţie a încăperii de
locuit) from the Local Council authority (section 50). The
voucher serves as the only legal basis for taking possession of the
flat designated therein and for the signing of a tenancy agreement
between the landlord, the tenant and the housing maintenance
authority (sections 50 and 53).
- The flat is reserved for the tenant for the period
when he or she and the members of his or her family are on mission
abroad. The Local Council issues a certificate (certificat de
protecţie), which should be presented to the landlord. If
the tenant and the members of his or her family fail to return to the
flat within six months of the date of expiry of the validity of the
certificate, the landlord has the right to initiate judicial
proceedings in order to terminate the tenancy
agreement (section 65). During the period of validity of the
certificate, the tenant has the right to sub-let the flat
(section 66).
- At any other time, the tenant
has the right to sub-let the flat, with the consent of the members of
his family and the landlord (section 77).
THE LAW
- The applicants complained that their right to have
their civil rights determined by a court had been violated by the
authorities’ failure to enforce the judgment of the Centru
District Court of 4 November 1999, which became final and enforceable
on 25 October 2000, until 4 December 2003. They relied on
Article 6 § 1, which in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair hearing ... by a
tribunal ....”
I. ADMISSIBILITY OF THE COMPLAINTS
- The case was communicated to the
Government on 8 October 2003 and the Government were requested to
submit their observations on the admissibility and merits of the case
before 20 January 2004. Insofar as the applicants had been employees
of the Academy of Sciences of Moldova (a State scientific
institution), it is to be noted that the Government did not submit
any observations on the applicability of Article 6 § 1 of the
Convention to the present case in the light of the Pellegrin v.
France case-law ([GC], no. 28541/95, § 66, ECHR 1999 VIII).
In the absence of any evidence on whether the applicants’
duties typified the specific activities of the public service and
whether they were acting as the depositaries of public authority
responsible for protecting the general interests of the State or
other public authorities, and given that their domestic claims
related to their property rights, the Court considers that Article 6
§ 1 of the Convention applies to the present case.
- In their observations on the admissibility and merits
and in their observations on the applicants’ just satisfaction
claims, the Government submitted that the judgment had been enforced
on 4 December 2003. Accordingly, the applicants had lost their
“victim status”. They also mentioned that in the
applicants’ declarations of 4 December 2003 (see paragraph 21
above) the latter had indicated that they would not claim
compensation from the Academy. Therefore, the Government asked the
Court to dismiss the application.
- The applicants submitted that the final judgment of 25
October 2000 was only enforced by the Government on account of the
Court’s decision to communicate the application. Moreover, the
Government had not paid them any compensation for the late
enforcement of the judgment, despite the fact that had the occupancy
vouchers been issued earlier, they could have
sub-let the apartments.
- The Court recalls that a
decision or measure favourable to an applicant is not, in principle,
sufficient to deprive the individual of his or her status as a
“victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1995, Reports of Judgments and Decisions
1996-III, p. 846, § 36; Dalban v. Romania, judgment
of 28 September 1999, Reports 1999-VI, § 44).
- In the present case, the Court
considers that, while the relevant judgment had now been enforced,
the Government have neither acknowledged, nor afforded adequate
redress for, the belated enforcement. In these circumstances, the
Court considers that the applicants can continue to claim to be
“victims” of a violation of their Convention rights by
the non-enforcement of final judgments in their favour (Dumbrăveanu
v. Moldova, no. 20940/03, § 22, 24 May 2005).
- The Court also notes that the documents invoked by the
Government appear to be in a standard form. Although the declarations
state that the applicants had no further claims against the Academy,
no reference is made in them to their application to this Court or to
their claims against the Government summarised in paragraph 30 above.
That the applicants had no intention of withdrawing their application
to the Court is borne out by the fact that on 23 March 2004
they expressly requested the Court to deal with their claims for just
satisfaction against the Government. The Court must therefore
continue the examination of the case (see Scutari v. Moldova,
no. 20864/03, §§ 17-20, 26 July 2005).
- The Court considers that the applicants’
complaint under Article 6 § 1 of the Convention raises
questions of law which are sufficiently serious that their
determination should depend on an examination of the merits. No other
grounds for declaring it inadmissible have been established. The
Court therefore declares the complaint admissible. In accordance with
its decision to apply Article 29 § 3 of the
Convention (see paragraph 5 above), the Court will immediately
consider the merits of the complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The Government submitted that in view of the
enforcement of the judgment on 4 December 2003, there had
been no violation of Article 6 § 1 of the Convention.
According to them, the judgment had been enforced within a reasonable
time.
- The general principles which apply in cases of this
type are set out in Prodan v. Moldova, no. 49806/99, §§
52-53, ECHR 2004 III (extracts).
- The Court notes that the final judgment of the Supreme
Court of Justice of 25 October 2000 remained unenforced for more than
three years. It recalls that it has found a violation in cases in
which the periods of non-enforcement were much shorter than in the
present case (see, for example Scutari, cited above, §
26). Accordingly, it cannot agree with the Government that the
judgment of 25 October 2000 was enforced within a reasonable time.
- By failing for years to take the necessary measures to
comply with the final judicial decision in the instant case, the
Moldovan authorities deprived the provisions of Article 6 § 1 of
the Convention of all useful effect (see Scutari, cited above,
§ 25).
- There has accordingly been a violation of Article 6 §
1 of 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 claimed 17,000,
15,000 and 15,000 euros (EUR) respectively for non-pecuniary and
pecuniary damage suffered as a result of the non-enforcement of the
final judgment. They argued that the failure to enforce the final
judgment for a long period of time caused them stress and anxiety as
well as pecuniary loss since they could have sub-let the flats and
obtained income.
- The Government disagreed with
the amounts claimed by the applicants and argued that the finding of
a violation would constitute sufficient just satisfaction.
a) Pecuniary damage
- The Court considers that it is a
matter of pure speculation whether or not the applicants would have
sub-let the flats if the judgment had been enforced earlier. It notes
that they would not have become the owners of the flats and would
still have needed the landlord’s consent to sub-let or a
certificate from the Local Council, as in Mr Aurel Lozan’s case
(see paragraphs 25 and 26 above). It also notes in this respect that
the applicants lived in the flats throughout the period in question
and it does not appear that they had other accommodation where they
could have lived had they sub-let their flats. Therefore, the Court
does not award any compensation to the applicants for pecuniary
damage.
b) Non-pecuniary damage
- Given that for more than three
years the applicants’ legal status as tenants was precarious
and that this must have caused them some anxiety, the Court considers
that they must have suffered non-pecuniary damage which cannot
be made good by the mere finding of a violation of the Convention.
The particular amount claimed is, however, excessive. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicants EUR 500 each for
non-pecuniary damage.
B. Costs and expenses
- The applicants also claimed EUR
1,500 for legal representation and EUR 50 for costs and
expenses. In support of their claims their representative sent to the
Court copies of the contract of representation and a copy of the
detailed timesheet showing the number of hours spent by him on their
case.
- The Government did not agree with the amount claimed,
stating that it was excessive. The amount claimed by the applicants
was too high in the light of the average monthly wage in Moldova. The
Government also contested the number of hours spent by the
applicants’ representative on the case.
- The Court recalls that in order for costs and expenses
to be included in an award under Article 41, it must be established
that they were actually and necessarily incurred and were reasonable
as to quantum (see, for example, Nilsen and Johnsen v. Norway
[GC], no. 23118/93, § 62, ECHR 1999-VIII).
- In the present case, regard being had to the itemised
list submitted by the applicants, the above criteria, and to the fact
that this was a relatively straightforward case in which the
applicants were all represented by the same lawyer, the Court does
not consider that the costs claimed were reasonable as to quantum. It
awards the applicants a global sum of EUR 500, plus any tax that
may be payable.
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 the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros) each to Mr Aurel Lozan,
Mr Vitalie Samoil and Mrs Liliana Sângerean
in compensation for non-pecuniary damage and a global sum of
EUR 500 (five hundred 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 amount 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 10 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
