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FOURTH
SECTION
CASE OF
DRAGUTA v. MOLDOVA
(Application
no. 75975/01)
JUDGMENT
STRASBOURG
31
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 Drăguţă
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 10 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75975/01) 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 a Moldovan national, Mrs Valentina Drăguţă
(“the applicant”), on 16 July 1999.
2 The
Moldovan Government (“the Government”) were represented
by their Agent, Mr V. Pârlog.
- The
applicant complained that the failure to enforce the judgments of
10 October 1995 and of 29 September 1998 violated her right to
have her civil rights determined by a court within a reasonable time,
as guaranteed by Article 6 of the Convention, and her right to
peaceful enjoyment of her possessions, as guaranteed by Article 1 of
Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
8 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Chişinău. She is an
invalid (second degree).
- The
applicant and her family (her husband and three children, two of whom
were minors at the relevant time) rented an apartment from the State.
In 1994 the apartment was seriously damaged due to leakage from water
pipes. Two special commissions of the Chişinău Municipality
confirmed the damage to the apartment and found that it was not
habitable and was in imminent danger of collapse. The applicant’s
requests to be offered alternative accommodation as required by law
were rejected by the Municipality due to the lack of available
apartments. The applicant and her family continued to live in the
apartment until December 2000 when they moved to a rented room.
- In
April 1995 the applicant brought a civil action against the
Municipality claiming the right to receive a new apartment. On
10 October 1995 the Chişinău District Court found for
the applicant and ordered the Municipality to provide accommodation
for her five-person family (“the 1995 judgment”). The
court issued an enforcement warrant no. 2-383/95. On 21 October 1995
the applicant requested the bailiff and the court to enforce the
order.
- Because
the Municipality refused to comply with the judgment of 10 October
1995, the applicant requested the court to change the means of
enforcing the judgment, claiming the monetary value of the apartment.
- On
29 September 1998 the Chişinău District Court issued a new
judgment, obliging the Municipality to pay the applicant 146,440
Moldovan lei (MDL) (the equivalent of 24,000 United States dollars at
the time) representing the market value of a four-room apartment in
Chişinău (“the 1998 judgment”). The court
issued a new enforcement warrant under the same number as that issued
in 1995 (no. 2-383/95).
- On
27 October 1998 the Chişinău Regional Court upheld that
judgment. There was no further appeal and the judgment became final.
- The
applicant obtained an enforcement warrant which the bailiff did not
enforce. Following the applicant’s request, the Chişinău
District Court froze the Municipality’s bank account on 13
November 1998, but there was apparently no money on that account. On
9 June 1999 the applicant wrote a letter to the Ministry of Justice,
complaining about the non-enforcement of the 1998 judgment. The
Ministry of Justice forwarded the letter to the Chişinău
District Court.
- Following
the applicant’s request one of the Municipality’s
buildings was seized for sale at a public auction. However, it was
not sold.
- According
to the applicant, the 1998 judgment was enforced on 11 January
2002. According to the Government, the date of enforcement was 26
December 2001.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in this Court’s judgment
in the case of Prodan v. Moldova, no. 49806/99, ECHR 2004 III
(extracts).
In
addition, the relevant provisions of the Law no. 824 of 24 December
1991 on index-linking of population income read as follows:
“Article 1
Index-linking of population income means the complete or
partial recovery of the losses to the population income caused by the
increase in prices and tariffs for goods and services and constitutes
a permanent mechanism for automatic correction of the level of
population income. ...
Article 3
There shall be an index-linking of all financial income
of citizens in the form of wages of persons employed by State
organisations, as well as enterprises which sell their products at
fixed prices, pensions, stipends, social assistance payments and
other income which does not have a one-time character, as well as
deposits of the population in banks and credit institutions”.
THE LAW
- The
applicant complained that the failure to enforce the judgments of
1995 and 1998 in her favour violated her rights as guaranteed by
Article 6 § 1 and Article 1 of Protocol No. 1 to the
Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time by a tribunal ....”
Article
1 of Protocol No. 1 reads as follows:
“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.”
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that since the award had been paid on
26 December 2001 the applicant could no longer claim to be a
victim of a violation of her Convention rights.
- The
Court notes that it has already dismissed a similar objection raised
by the respondent Government because “the payment ... did not
involve any acknowledgement of the violations alleged” (Prodan
v. Moldova, cited above, § 47). Moreover, no
compensation for delayed enforcement was paid.
- In
these circumstances, the Court considers that the applicant may claim
to be a victim of a violation of Article 6 § 1 of the Convention
and of Article 1 of Protocol No. 1 to the Convention.
- The
Court considers that the applicant’s complaints under Article 6
§ 1 and under Article 1 of Protocol No. 1 to the Convention
raise questions of law which are sufficiently serious that their
determination should depend on an examination of the merits, and no
other grounds for declaring them inadmissible have been established.
The Court therefore declares these complaints admissible. In
accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF
ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the non-enforcement of the judgments of
1995 and 1998 in her favour violated her right under Article 6 §
1 of the Convention.
- The
applicant also complained that her right to property had been
breached as a result of the failure of the authorities to compensate
her for the loss of value of the award made to her on account of its
delayed enforcement.
- The
Court notes that the 1995 judgment remained unenforced, even after it
was modified in 1998, until at least December 2001. However, it notes
that Moldova acceded to the Convention on 12 September 1997.
Accordingly, only the period between that date and December 2001,
that is four years and three months, is within its jurisdiction
ratione temporis.
- 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 material submitted to it, the Court notes that the file
does not contain any element which would allow it to reach a
different conclusion in the present case.
- Accordingly,
the Court finds, for the reasons given in those cases, that the
failure to enforce the 1995 judgment, as modified in 1998, 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. Pecuniary damage
26. The applicant claimed 50,000 euros (EUR)
for both pecuniary and non-pecuniary damage suffered. She claimed MDL
163,573 (EUR 10,724) for the pecuniary damage suffered as a result of
the failure of the authorities to enforce the judgment of 29
September 1998 for over three years. She submitted statistical data
showing that during 1998-2002 inflation had amounted to
111.7%, decreasing the value of her 1998 monetary award.
- The
Government submitted that the applicant could have claimed
compensation for the effects of inflation on her award on the basis
of Law no. 824 (see paragraph 14 above).
They
also submitted that the bailiff took all reasonable measures to
enforce the judgment, but this proved impossible due to the lack of
money in the Municipality’s account.
- The
Court observes that the Government have not submitted any case-law to
show that Law no. 824, on which they relied, has been interpreted by
the courts to cover situations such as that of the applicant, i.e.
persons who have judgment debts in their favour.
- As
for the argument that the bailiff had taken all reasonable measures
to enforce the judgment, the Court notes that the applicant’s
debtor was the Chişinău Municipality, a State authority. It
recalls that “it is not open to a State
authority to cite lack of funds and available alternative
accommodation as an excuse for not honouring a judgment debt.
Admittedly, a delay in the execution of a judgment may be justified
in particular circumstances. But the delay may not be such as to
impair the essence of the right protected under Article 6 § 1 of
the Convention” (Prodan, cited above, §
53). Therefore, the Government’s argument that the Municiality
had no money to discharge the debt cannot be taken into account.
- The
Court considers that the depreciation of the actual value of the
award of 29 September 1998 during the period when it was not enforced
constitutes pecuniary damage sustained by the applicant which must be
compensated by the respondent State (see, e.g., Akkuş v.
Turkey, judgment of 9 July 1997, Reports of Judgments and
Decisions 1997 IV, § 35). It considers that the
applicant has proved the depreciation as claimed and it therefore
awards the entire amount sought in this respect.
31. The
applicant also submitted that her family had accumulated debts in
respect of the apartment which she and her family had to vacate in
December 2000 (electricity, water, etc). However, the bills which she
submitted were issued in 2004 and it is not clear to which period
they relate, considering that the judgment debt was enforced in
December 2001. The Court considers that she has not substantiated
this part of her claims.
32. Moreover,
since December 2000 the applicant’s family had to rent a room
to live in and thus incurred additional expenses. The applicant
presented a confirmation to that effect but did not specify the
amount of money spent on rental or provide any proof of such
expenses.
- The
Government noted this lack of specification of the expenses and
declared that the applicant had the right to reduced payments in
respect of matters such as rent, electricity, etc. by virtue of her
invalidity.
- In
view of the applicant’s failure to specify the amounts spent on
rent and to provide any supporting evidence, and taking into account
that since 29 September 1998 the enforcement proceedings concerned
the sum of money due to her and not the provision of accommodation,
the Court does not make an award in this respect.
- Having
regard to the above circumstances, and deciding on an equitable
basis, the Court awards the applicant the total sum of EUR 10,724
for pecuniary damage suffered as a result of the late
enforcement of the judgment of 29 September 1995 as modified in 1998.
B. Non-pecuniary damage
- The
applicant also submitted that she had suffered non-pecuniary damage
as a result of the failure of the authorities to enforce the two
judgments within a reasonable time. She emphasised that the belated
enforcement had prevented her family from living in acceptable
conditions for over six years and that she suffered from cancer as a
result and became an invalid.
- The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive and that no reasonable link between her
living conditions and her illness had been established.
- In making awards for non-pecuniary damage, the Court
takes into consideration such factors as the applicant’s age
and health, the period during which the judgment was not enforced and
other relevant aspects (Croitoru v. Moldova, no. 18882/02, §
31, 20 July 2004).
- The
Court considers that the applicant must have been caused a
significant amount of stress and frustration as a result of the late
enforcement of the 1995 judgment as modified in 1998, particularly
given her precarious state of health and the rather long period
during which she and her family, including two minors, had to live in
unacceptable and dangerous conditions. It awards the applicant EUR
3,000 under this head (Prodan v. Moldova, cited above, §
82 and Malinovskiy v. Russia, no. 41302/02, § 52,
ECHR 2005 ... (extracts)).
C. Costs and expenses
40. The
applicant did not make any claim in this respect.
D. 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 that there has been a violation of Article
1 of Protocol No. 1 to 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 10,724 (ten thousand seven hundred and twenty
four euros) for pecuniary damage and EUR 3,000 (three
thousand euros) for non-pecuniary damage, 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 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
