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FOURTH
SECTION
CASE OF
CLIONOV v. MOLDOVA
(Application
no. 13229/04)
JUDGMENT
STRASBOURG
9
October 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 Clionov 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 18 September 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 13229/04) 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 Grigore Clionov, (“the
applicant”), on 22 March 2004. The applicant, who was granted
legal aid, was represented before the Court by Mr V. Zamă
from “Lawyers for Human Rights”, a non-governmental
organisation based in Chişinău.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr V. Pârlog.
- The
applicant complained that the delays in enforcing the final judgments
of 11 April 2001 and 26 June 2003 had violated his right to have his
civil rights determined by a court within a reasonable time, as
guaranteed by Article 6 of the Convention, and his right to peaceful
enjoyment of his possessions, as guaranteed by Article 1 of Protocol
No. 1 to the Convention. He also complained about a violation of his
right of access to a court, contrary to Article 6 § 1 of the
Convention.
- The
application was allocated to the Fourth Section of the Court. On
4 January 2005 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The applicant was a victim of a work accident in 1984.
He was rendered 100% unfit to work and was found to be in the first
degree invalidity category. The employer, The National Institute of
Vineyards and Wine (“the NIVW”), was obliged by law to
pay him monthly invalidity benefit. After the introduction of the new
national currency the amount of benefit was set at approximately 18
euros (EUR) per month and had risen to approximately EUR 50 per month
by 2003. He also receives a small State pension.
- From 1996 the NIVW stopped paying the compensation and
the applicant accumulated a significant debt to public utility
companies. He initiated court proceedings to oblige the employer to
resume payment of the benefit and to recover benefit for the entire
period due. According to the Government, the employer did not have
sufficient information about the applicant during the period
1996-2001 and this was the reason for discontinuing the payments. The
applicant submitted a copy of his complaint to NIVW regarding the
discontinuation of the payments dated January 1998 and the NIVW's two
letters in response, according to the last of which (March 1998) the
payment of the benefit had been suspended because of lack of funds.
The applicant also complained to various authorities in 2000 about
the NIVW's failure to pay. In a letter dated 2 August 2000 the
deputy Minister of Agriculture and Food Processing assured the
applicant that his benefit would soon be paid.
- On 11 April 2001 the Ciocana District Court accepted
the applicant's claims and awarded him 23,921 Moldovan lei (MDL) (the
equivalent of EUR 2,076 at the time) in respect of compensation due
to him to that date. It ordered the NIVW to pay the court fees. No
appeal was lodged and the judgment became final and enforceable 15
days later. The court then issued a warrant for the enforcement of
the judgment.
- On 20 February 2002 the NIVW was declared insolvent
and an Administrator was appointed for the period of its liquidation.
The applicant submitted that the organisation was, in fact, in the
process of restructuring and was not liquidated, as evidenced by
official documents signed by the NIVW's administrator. He also
claimed that the NIVW had continued to pay staff salaries and had
even purchased new equipment. He referred to a decision of the Court
of Audit (no. 2, 2001), according to which the NIVW had been given a
credit in the amount of 2,890,000 United States dollars (USD) by the
Ministry of Finance from its own loan from the International Bank of
Reconstruction and Development and that this money had been used to
purchase wine production equipment. By July 2000 the NIVW had
obtained revenue from this new equipment amounting to approximately
EUR 14,500. The applicant also referred to another decision of the
same court (no. 20, 2004) according to which in 2003 the NIVW had
received from the State budget MDL 785,000 to finance research
and specialised education.
- From
June 2002 until October 2002 the NIVW paid the applicant a total of
MDL 8,000.
- On
30 October 2002 the applicant initiated new court proceedings
requesting the recalculation of the compensation due (because
inflation had decreased the value of the earlier award) and also
payment of an additional MDL 49,178 (EUR 3,630 at the time) in
damages for the late and partial payment of the previous award (in
2001). He also claimed payment of the compensation arrears which had
accumulated since that previous judgment.
- On 13 November 2002 the NIVW paid him the balance of
the 2001 award (MDL 15,900). In a letter dated 14 April 2003 it
recognised a part of the applicant's new claims for invalidity
benefit for 2002 and stated that the calculation for 2003 would be
carried out in cooperation with the Ministry of Labour.
- On 26 June 2003 the Centru District Court accepted the
applicant's new claims in part and awarded him MDL 7,729 (EUR 478 at
the time) for the period 11 April 2001 until 1 June 2003, during
which he had been paid only a part of his monthly benefit. The court
rejected his claim for compensation for damage caused by delayed
enforcement and by inflation during the relevant period.
- Having
exempted the applicant from payment of the court fees when initiating
this second action, the court ordered that the fees be paid by the
unsuccessful party, namely the NIVW.
- On 10 November 2003 the Economic Court of Appeal
issued a certificate confirming that the NIVW was in the process of
reorganisation. On 11 November 2003 the Court of Appeal rejected an
appeal lodged by the applicant against the judgment of 26 June 2003.
- He then appealed twice to the Supreme Court of
Justice. By letters of 27 November 2003 and 23 April 2004 the court
informed the applicant that his appeal had not been examined because
he had failed to pay the court fees (approximately EUR 50). His
request for an exemption was rejected, the only reason given being
that the relevant legal provisions (Articles 85(4) and 86 of the Code
of Civil Procedure, see paragraph 21 below) did not apply.
- In
view of the Supreme Court of Justice's refusal to examine his appeal,
the judgment of 11 November 2003 became final.
- According to a letter from the NIVW director submitted
to the Court by the Government, by Government Decision no. 159 of 20
January 2004 the NIVW was split into two separate State companies and
received approximately 20% of its funds from the State budget.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 III (extracts)).
- In addition, the relevant provisions of the new Code
of Civil Procedure, in force since 12 June 2003, read as follows:
“Article 85
...
(4) The judge (the court) may exempt partly or entirely
a natural person from paying court fees, taking into account the
person's financial situation.
Article 437
...
(2) Proof of payment of court fees shall be annexed to
the cassation appeal; Articles 85(4) and 86 do not apply.”
THE LAW
- The
applicant complained that his rights as guaranteed under Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1
to the Convention had been violated as a result of the delayed
enforcement of the judgments of 11 April 2001 and 26 June 2003. He
also complained about a violation of his right of access to court
guaranteed by Article 6 as a result of the refusal of the Supreme
Court of Justice to examine his cassation appeal because of his
failure to pay the court fees.
Article
6 § 1 of the Convention, in so far as relevant, provides:
“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 to the Convention provides:
“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. ADMISSIBILITY
The Government's preliminary objection
- The
Government submitted that since both awards in the applicant's favour
had been fully enforced and since he had been compensated for the
effects of inflation on the value of the 2001 award, the applicant
could no longer claim to be a victim of a violation of his Convention
rights.
- The
Court notes that it has already dismissed a similar objection raised
by the respondent Government (see Prodan v. Moldova, cited
above, § 47). Moreover, despite the applicant's express
request to compensate him for damage, as well as for the effects of
inflation on his awards, the courts rejected any such compensation
(see paragraphs 14 and 17 above). Compensation for the effect of
inflation on the value of the first award offered only partial
redress for the pecuniary damage and nothing was awarded for the
non-pecuniary damage caused to the applicant.
- In
these circumstances, the Court considers that the applicant has not
lost his status as a victim of a violation of his Convention rights.
The Court considers that the applicant's complaints under Article 6 §
1 of the Convention and 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 the 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 final judgment
in his favour had violated his rights under Article 6 § 1 of the
Convention and under Article 1 of Protocol No. 1 to the Convention.
- The Government disagreed. They submitted that the
delay in enforcing the judgment had not been excessive. Moreover,
enforcement had been obstructed by an objective factor, namely the
NIVW's liquidation proceedings, during which no enforcement was
allowed. They added that the State could not be held liable for the
debts of the NIVW, which was independent of the State.
- The Court notes that in the present case the NIVW was
formally declared to be independent from the State and to be in
charge of its own economic activity. However, it also notes that the
NIVW received substantial funding directly from the State budget (see
paragraphs 10 and 19 above). Moreover, State authorities had direct
control over the management of the NIVW, as illustrated by the
Government Decision of 20 January 2004 (see paragraph 19 above) and
were involved in various decisions taken in respect of the NIVW (see
paragraphs 8 and 13 above).
- In view of the direct funding from the State budget
and the extensive control over the NIVW's activity by the
authorities, the Court considers that the State is to be held
responsible for any debts incurred by the NIVW (see Cooperativa
Agricola Slobozia-Hanesei v. Moldova, no. 39745/02, § 19,
3 April 2007, and Mykhaylenky and Others v. Ukraine, nos.
35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02,
36800/02, 38296/02 and 42814/02, §§ 41-46, ECHR 2004 XII).
Hence, the enforcement warrant in favour of the applicant may be
considered as having been issued against the State itself.
- The
Government relied on the difficulties in enforcing the judgment which
were due to the NIVW's liquidation (see paragraph 10 above). The
applicant considered that the NIVW had not been liquidated but only
reorganised, as evidenced by various documents (see paragraph 16
above) and by the fact that the NIVW continued to function.
- The
Court notes that the first judgment in the applicant's favour became
enforceable on 27 April 2001, while the NIVW was declared to be in
the process of liquidation on 20 February 2002. There is nothing in
the file to show that any action was taken during the period of
almost 10 months before the liquidation proceedings. At the same
time, the authorities were aware (see paragraph 8 above) of the
urgent need that the applicant had to obtain his invalidity benefit,
since this was his main source of subsistence.
- The
Court considers that, regardless of whether the NIVW was in the
process of liquidation or reorganisation, the judgment in the
applicant's favour should have been enforced as a matter of urgency.
Since the State was ultimately liable for the NIVW's debts (see
paragraph 29 above), the lack of funds could not constitute an
obstacle to enforcement since “it is not open to a State
authority to cite lack of funds as an excuse for not honouring a
judgment” (see Immobiliare Saffi v. Italy [GC], no.
22774/93, § 74, ECHR 1999-V).
- The
issues raised under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 to the Convention are identical to those found to
give rise to violations of those Articles in Prodan v. Moldova
(cited above, §§ 56 and 62) and Cooperativa Agricola
Slobozia Hanesei (cited above, § 28). There is no reason to
depart from those findings in the present case.
- There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention in
the present case.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the refusal of the Supreme Court of Justice
to examine his cassation appeal because of his inability to pay the
court fees had breached his right of access to a court, guaranteed by
Article 6 § 1 of the Convention.
- The Government pointed to the absence, in the domestic
case file, of any reference to a cassation appeal lodged by the
applicant. They doubted that such an appeal had been lodged and asked
the Court to reject this complaint as manifestly ill-founded.
- The applicant stated that no reference was to be found
in the case file because the Supreme Court of Justice, considering
that his appeal did not correspond to the requirements established by
law (because of his failure to pay the court fees), had not requested
the case file from the lower court and had not made any mention of
the appeal in the file. Instead, the court returned the appeal with
its annexed documents to him, as shown by the two letters sent to him
(see paragraph 17 above). In their subsequent observations the
Government conceded that the applicant had lodged a cassation appeal.
They submitted that it was reasonable to restrict access to the third
level of jurisdiction in order to ensure the efficient administration
of justice.
- The
Court refers to the general principles established in its case-law
concerning access to a tribunal within the meaning of Article 6 §
1 of the Convention and, more specifically, the requirement to pay
court fees (see, among many authorities, Kreuz v. Poland, no.
28249/95, §§ 52-57, ECHR 2001 VI and the further
references therein).
- In
the present case the Court notes that the relevant proceedings
concerned the applicant's claim for damages. Accordingly, Article 6 §
1 applies under its civil head (see Kreuz, cited above, §
35). The Court also reiterates that Article 6 § 1 does not
guarantee a right to appeal from a decision of first instance. Where,
however, domestic law provides for a right of appeal, the appeal
proceedings will be treated as an extension of the trial process and
accordingly will be subject to Article 6 (Delcourt v. Belgium,
judgment of 17 January 1970, Series A no. 11, § 25;
Gurov v. Moldova, no. 36455/02, § 33, 11
July 2006). It is to be noted that Moldovan law allowed the applicant
to lodge an appeal in cassation with the Supreme Court of Justice.
That court could restrict his right of appeal only where it found
that the appeal did not correspond to the applicable legal
requirements.
- The
Court notes that the Supreme Court of Justice relied on the
provisions of the law in refusing to examine the applicant's appeal,
namely his failure to pay court fees. Accordingly, the Court needs to
examine whether, in rejecting the applicant's request to waive the
payment of court fees, the Supreme Court of Justice took into account
the particular circumstances of his case, first of all his ability to
pay.
- It
was not disputed by the parties that the Supreme Court of Justice had
never examined the case file (see paragraphs 17, 36 and 37 above).
Therefore, the court had no direct knowledge of the applicant's
financial situation. Moreover, the Supreme Court of Justice was
prevented from verifying the applicant's ability to pay by the
express provisions of the law (Article 437 (2) of the Code of Civil
Procedure, see paragraph 21 above). Such a blanket prohibition on
granting court fee waivers as contained in that Article raises of
itself an issue under Article 6 § 1 of the Convention.
- In
view of the above, the Court considers that the applicant was denied
access to a tribunal. There has, accordingly, been a violation of
Article 6 § 1 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. Pecuniary damage
- The
applicant claimed EUR 1,059 for pecuniary damage resulting from his
inability to use the money awarded on 11 April 2001 for over a year.
He relied on the interest rates on deposits made in a leading
commercial bank in Moldova.
- The
Government contested these calculations and considered that no
pecuniary damage to the applicant had been proved.
- The Court considers that the applicant suffered
pecuniary damage as a result of the failure to enforce the judgment
of 11 April 2001 within a reasonable time. The specific amount
claimed is, however, excessive. The Court awards the applicant EUR
300, taking into account that he has already received the judgment
debt in its entirety.
B. Non-pecuniary damage
- The
applicant also claimed EUR 30,000 for non-pecuniary damage. He
referred to his advanced age for Moldova (70) and sufferings as a
result of the failure to enforce the award in his favour within a
reasonable time, which resulted in his inability to afford basic
commodities, medications and to pay for a nurse to take care of him
since he is 100% unfit for any activity. In addition, he suffered
because of the refusal of the Supreme Court of Justice to examine his
cassation appeal without verifying his personal situation.
- The
Government submitted that in view of the NIVW's liquidation the
enforcement of the judgment in the applicant's favour had been
prevented by objective factors and thus could not have caused him
damage. Moreover, the NIVW had complied with the judgment. As for the
refusal to examine the applicant's cassation appeal, it was not
unreasonable but pursued legitimate aims. The Government asked the
Court to reject the applicant's claims for non-pecuniary damage.
- The
Court considers that the applicant must have been caused a
considerable amount of stress and frustration as a result of the
non-enforcement of the judgment in his favour within a reasonable
time, in particular given the nature of the award and the fact that
he had to live without his invalidity benefit for over a year. This
damage was compounded by the refusal to examine his cassation appeal,
concerning as it did compensation for the delay in enforcing the
judgment of 11 April 2001. However, the amount claimed is excessive.
Ruling on an equitable basis, the Court awards the applicant
EUR 2,700 for non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 1,200 for costs and expenses. In support of his
claims he submitted a contract with his lawyer and an itemised list
of hours spent by the lawyer in preparing the case.
- The
Government disagreed with the amount claimed and the number of hours
worked on the case.
- The Court notes that it has granted the applicant
legal aid under the Court's legal-aid scheme for the submission of
his observations and additional comments and secretarial expenses. In
the circumstances of the present case and given its partly repetitive
nature, the Court considers that no further compensation for costs
and expenses is necessary. Accordingly, it makes no award under this
head.
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 as a result of the failure
to enforce the judgment of 11 April 2001 within a reasonable time;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention as a result of the same failure
to enforce the judgment of 11 April 2001 within a reasonable time;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the
restriction on the applicant's right of access to a court;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 300 (three
hundred euros) in respect of pecuniary damage and EUR 2,700 (two
thousand seven hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable on the above amounts, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement;
(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 9 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
