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FOURTH
SECTION
CASE OF COGUT v. MOLDOVA
(Application
no. 31043/04)
JUDGMENT
STRASBOURG
4
December 2007
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 Cogut 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,
Mr J.
Šikuta, judges,
and Mrs F. Aracı, Deputy
Section Registrar,
Having deliberated in private on 13
November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31043/04) 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, Mr Vadim Cogut (“the
applicant”), on 1 July 2004.
- The
applicant was represented by Mr Valeriu Pelin, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent at the time, Mr Vitalie Pârlog,
and by Ms Lilia Grimalschi, Head of the Government Agent's
Directorate.
- The
applicant complained that the belated enforcement of the final
judgment in his favour violated his right to have his civil rights
determined by a court as guaranteed by Article 6 of the Convention
and his right to the peaceful enjoyment of his 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
4 March 2006 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
- The
applicant and the Government each filed observations on the
admissibility and merits of the case (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Chişinău.
- On
17 March 1999, after 27 years of military service, the applicant was
transferred to the reserve. As he did not obtain a two-roomed
apartment from the Ministry of Defence (“the Ministry”)
to which he was entitled, he brought an action against it.
-
By a final judgment of 23 November 2000 the Supreme Court
of Justice ruled in favour of the applicant and ordered the Ministry
to provide him with a two-roomed apartment.
- Since
the Ministry did not have apartments available, on an unspecified
date in 2001 the applicant lodged an action with the Centru District
Court seeking a change in the manner of enforcement of the judgment
of 23 November 2000. In particular, he claimed money from the
Ministry in lieu of an apartment.
-
On 18 May 2001 the Centru District Court decided to
change the manner of enforcement of the judgment of 23 November 2000
and ordered the Ministry to pay the applicant 83,000 Moldovan lei
(MDL) (the equivalent of 7,133 euros (EUR) at the time). The Ministry
appealed.
-
On 4 July 2001 the Chişinău Regional Court
upheld the appeal, quashed the judgment of 18 May 2001 and
discontinued the proceedings aimed at modifying the manner of
enforcement of the judgment of 23 November 2000.
-
Following a request from the applicant, the Deputy
Prosecutor General lodged a request for annulment of the judgment of
4 July 2001. The request for annulment was upheld by a judgment of
the Supreme Court of Justice of 5 June 2002 and the judgment of
18 May 2001 therefore became final.
- On
25 June 2002 the applicant requested the Centru District Court to
issue an enforcement warrant.
- On
19 July 2002 a bailiff requested the Ministry to comply with the
judgment in favour of the applicant.
- On
13 September 2002 the Ministry replied that the judgment could not be
enforced because of lack of money.
- On
21 January 2003 a bailiff issued a payment order in respect of the
Ministry in the amount of MDL 83,000. On 18 April and 25 July 2003
the bailiff informed the applicant that the Ministry had refused to
comply with the requests to enforce the judgment and therefore
administrative proceedings had been instituted against those
responsible for non-enforcement of the final judgment.
- By
a judgment of 26 February 2004 the Chişinău Court of Appeal
discontinued the administrative proceedings against the Minister of
Defence. It found that although the judgment in favour of the
applicant had not been enforced, the Minister was not to be held
responsible for the Government's failure to allocate money for that
purpose.
- Between
2002 and 2003 the applicant unsuccessfully lodged complaints about
the non-enforcement of the judgment.
-
On 15 March 2005 the applicant was paid MDL 83,000.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law was set out in Prodan v. Moldova,
no. 49806/99, § 31, ECHR 2004 III (extracts).
- The
Civil Code of 12 June 2003 reads, inter alia, as follows:
Article 619. Default interest
“(1) Default interest is payable for delayed
execution of pecuniary obligations. Default interest shall
be 5% above the interest rate provided for
in Article 585 [NBM refinancing interest rate] unless
the law or the contract provides otherwise. Proof that less
damage has been incurred shall be admissible.
(2) In non consumer-related situations default
interest shall be 9% above the interest rate provided
for in Article 585 unless the law or the contract provides
otherwise. Proof that less damage has been incurred shall be
inadmissible.”
THE LAW
- The
applicant complained that the non-enforcement of the final judgment
in his favour had violated his rights under 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
- In
their observations on the admissibility and merits of the case, the
Government submitted that the final judgment in favour of the
applicant had been enforced on 15 March 2005. Accordingly, the
applicant had lost his “victim” status.
- The
applicant submitted that the final judgment of 18 May 2001
had been enforced only after an unreasonable delay. He argued that
the national authorities had not paid him any compensation for the
late enforcement of the judgment.
- The
Court reiterates that a decision or measure favourable to an
applicant is not, in principle, sufficient to deprive the individual
of his or her status as “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 1996,
Reports of Judgments and Decisions
1996-III, p. 846, § 36 and Dalban v. Romania
[GC], no. 28114/95, § 44,
ECHR 1999 VI).
- In
the present case, the Court considers that, while the relevant
judgment has now been enforced, the Government have neither
acknowledged nor afforded adequate redress for the delay in
enforcement. In such circumstances, the applicant can continue to
claim to be a “victim” of a violation of his Convention
rights as a result of the lengthy non-enforcement of the final
judgment in his favour (see Dumbrăveanu
v. Moldova, no. 20940/03,
§ 22, 24 May 2005).
- The
Court considers that the applicant's complaints raise questions of
law which are sufficiently serious that their determination should
depend on an examination of the merits. No other grounds for
declaring the complaints inadmissible have been established. The
Court therefore declares the 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 the complaint.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
AND OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant argued that the authorities had failed to enforce a final
judgment in his favour from 18 May 2001 until 15 March
2005, namely a period of almost four years.
- In
their observations on the applicant's claims for just satisfaction,
the Government, however, submitted that on 21 January 2003 the
Ministry had transferred MDL 83,000 to a bailiff and that the
applicant had only come to collect his money on 15 March 2005.
In their view, since the applicant had requested the enforcement
warrant only on 25 June 2002 (see paragraph 13 above), the period of
non-enforcement totalled seven months. The Government considered that
as the applicant had received the amount due before the Court had
communicated the case, there had been no violation of Article 6 § 1
and Article 1 of Protocol No. 1 to the Convention.
- The
Court observes that the general principles which apply in cases of
this type are set out in Prodan v. Moldova (cited above, §§
52-53 and 59).
- In
view of the materials before it, the Court is not persuaded by the
Government's submission that the Ministry had complied with the
judgment in favour of the applicant on 21 January 2003. It is to
be noted in the first place that the payment order of 21 January
2003 was issued by a bailiff in respect of the Ministry and the fact
that the latter had failed to comply with a final judgment was
specifically mentioned in the bailiff's letters of April and July
2003 (see paragraph 16 above). Secondly, the Ministry's compliance
with the judgment in favour of the applicant was the subject of
domestic proceedings and it was found in those proceedings that in
February 2004 the Ministry had not yet enforced it (see paragraphs 16
and 17 above). Finally, in their observations on the admissibility
and merits of the case the Government submitted that the judgment in
favour of the applicant had been enforced on 15 March 2005 (see
paragraph 23 above). The Court therefore considers that the period of
non-enforcement should be calculated from 5 June 2002, when the
judgment of 18 May 2001 became final, to 15 March 2005,
when the applicant received MDL 83,000. Accordingly, the
applicant was not paid the judgment debt owed to him for a period of
thirty-three months and ten days.
- By
failing for thirty-three months and ten days to comply with the final
enforceable judgment in the applicant's favour the domestic
authorities infringed the applicant's right of access to a court and
prevented him from peacefully enjoying his “possession”
(see Prodan v. Moldova, cited above, §§ 55 and 61
and Sîrbu and Others v. Moldova, nos. 73562/01,
73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, §§ 26
and 32, 15 June 2004).
- There
has accordingly been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1.
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
- The
applicant claimed MDL 446,340 (EUR 26,436) in respect of
pecuniary damage suffered as a result of the belated enforcement of
the final judgment in his favour. He claimed that this amount
would cover the loss suffered as a result of the increase in the
price of apartments in Chişinău and inflation.
- The
Government considered the amount claimed by the applicant excessive
and contested his method of calculation.
- The
Court considers that the applicant must have suffered pecuniary
damage because of his inability to use the money as a result of the
belated enforcement of the judgment of 5 June 2002. Taking into
account the line of approach in Prodan (cited above, § 73),
and the domestic legislation concerning the calculation of default
interest (see paragraph 21 above), the Court awards the applicant
EUR 2,500 for pecuniary damage.
B. Non-pecuniary damage
38. The
applicant claimed compensation for non-pecuniary damage
suffered as a result of the infringement of his rights, without
specifying the amount of compensation.
- The
Government argued that the applicant had not adduced any evidence of
having suffered any stress or anxiety.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the late enforcement
of the judgment of 5 June 2002, which cannot be made good by the mere
finding of a violation (see Mihalachi v. Moldova,
no. 37511/02, § 48, 9 January 2007). Making its
assessment on an equitable basis, it awards the applicant EUR 800
for non-pecuniary damage.
C. Costs and expenses
- The
applicant did not submit any claim for costs and
expenses.
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 on account of the late
enforcement of the judgment 5 June 2002;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the same belated
enforcement;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,500 (two thousand five hundred euros) in respect of
pecuniary damage and EUR 800 (eight hundred euros) in respect of
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 4 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
