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FOURTH
SECTION
CASE OF BECCIU v. MOLDOVA
(Application
no. 32347/04)
JUDGMENT
STRASBOURG
13
November 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 Becciu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32347/04) 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, Mrs Alexandra Becciu (“the
applicant”), on 4 August 2004.
- The
applicant was represented by Ms Natalia Mardari, a lawyer practising
in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent at the time,
Mr Vitalie Pârlog.
- The
applicant complained that the belated enforcement of the final
judgment in her favour violated her right to have her civil rights
determined by a court as guaranteed by Article 6 § 1 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
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 1951 and lives in Ştefan
Vodă.
- In
March 1999 the applicant's apartment was burgled. The police caught
the burglars and recovered most of the stolen goods, which were
deposited at the Ştefan Vodă Police
Station as evidence.
- In
1999 the applicant's goods were stolen from the police station.
- On
24 July 2000 the applicant brought an action against the
Ministry of the Interior (“the Ministry”), seeking
compensation for the stolen goods.
- By
a judgment of 26 September 2003 the Căuşeni District
Court ruled in favour of the applicant and ordered the Ministry of
the Interior to pay her 183,752 Moldovan lei (MDL) (the equivalent of
11,960 euros (EUR) at the time). The judgment was not appealed
against and after fifteen days it became final and enforceable. The
District Court issued an enforcement warrant which was received by a
Bailiff on 5 November 2003.
- On
26 April 2004 a Bailiff informed the applicant that on
14 November, 25 November, 8 December 2003 and
20 February 2004 the Ministry had been ordered to comply with
the judgment. The Bailiff also informed her that administrative
proceedings had been instituted against the Minister of the Interior
for non-enforcement of the final judgment in favour of the applicant.
- On
27 May 2004 the Ministry informed the applicant that it had not
received the enforcement warrant and that the enforcement would be
possible only after having received funds for that purpose.
- On
29 December 2004 the applicant received MDL 30,993 (EUR 1,825),
on 26 January 2005 she received MDL 7,336 (EUR 450) and on
19 September 2005 she received MDL 72,700 (EUR 4,722). On
13 December 2005 the applicant received the last part of the
judgment debt of MDL 72,723 (EUR 4,767).
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law was set out in Prodan v. Moldova,
no. 49806/99, § 31, ECHR 2004 III (extracts).
THE LAW
- The
applicant complained that the belated enforcement of the final
judgment in her favour had violated her rights under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
Article
6 § 1 of the Convention, insofar 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. ADMISSIBILITY OF THE COMPLAINTS
A. Exhaustion of domestic remedies
- In
their observations on the admissibility and merits of the case, the
Government submitted that available domestic remedies had not been
exhausted. They argued that the applicant could have brought an
action against the Bailiff under Article 20 of the Constitution and
under Article 426 of the former Code of Civil Procedure (“the
former CCP”).
- The
Court notes that it has already dismissed a similar objection raised
by the respondent Government in respect of Article 426 of the former
CCP because “even assuming that the applicant could have
brought an action against the Bailiff and obtained a decision
confirming that the non-execution had been unlawful in domestic law,
such an action would not have achieved anything new, the only outcome
being the issue of another warrant enabling the Bailiff to proceed
with the execution of the judgment” (see Popov v. Moldova,
no. 74153/01, § 32, 18 January 2005). The Court does not see any
reason to depart from that conclusion in the present case.
- For
the same reasons, the Court considers that Article 20 of the
Constitution, which provides for a general right of access to
justice, did not offer the applicant an effective remedy. It has
dealt with a similar objection in Lupacescu and Others v.
Moldova, nos. 3417/02, 5994/02, 28365/02, 5742/03, 8693/03,
31976/03, 13681/03, and 32759/03, § 17, 21 March 2006
and does not consider it necessary to depart from its conclusion
reached in that case.
B. Victim status
- 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 fully enforced on 13 December 2005.
Accordingly, the applicant had lost her “victim status”.
- The
applicant submitted that the final judgment in her favour had been
enforced only after an unreasonable delay. She argued that the
national authorities had neither acknowledged the breach of the
Convention nor paid her 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 1995,
Reports of Judgments and Decisions
1996-III, p. 846, § 36; and Dalban
v. Romania, judgment of 28
September 1999, Reports
1999-VI, § 44).
- 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 her Convention
rights resulting from the lengthy non-enforcement of the final
judgment in her favour (see Dumbrăveanu v. Moldova,
no. 20940/03, § 22, 24 May 2005).
C. Conclusion on admissibility
- The
Court considers that the applicant's complaints under Article 6
§ 1 of the Convention 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, no other grounds for declaring them inadmissible having
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 VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
AND OF ARTICLE 1 OF PROTOCOL NO. 1
- The
Government submitted that as the judgment of 26 September 2003
had been enforced 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).
- It
is to be noted that the final judgment in the present case was given
on 26 September 2003 and the enforcement warrant was received by
the Bailiff on 5 November 2003. Although the Ministry partially
complied with the judgment and paid the applicant MDL 30,993 on
29 December 2004, which was after one year one month and
twenty-four days, the Court notes that most of the judgment debt
remained unpaid until September and December 2005 because of lack of
funds for that purpose (see paragraph 12 above).
- The
Court recalls that it is not open to a State authority to cite lack
of funds as an excuse for not honouring a final 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 (see Immobiliare Saffi v. Italy [GC], no.
22774/93, § 74, ECHR 1999-V).
- In
the instant case, by failing for two years to fully comply with the
final enforceable judgment in the applicant's favour the domestic
authorities breached the applicant's right of access to a court and
prevented her from peacefully enjoying her “possession”
(see Prodan, cited above, §§ 56 and 62; Lupacescu
and Others, cited above, § 24; and Shmalko v. Ukraine,
no. 60750/00, § 46, 20 July 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
31. The
applicant claimed MDL 60,124 (EUR 3,537) in respect of pecuniary
damage, representing the loss of interest suffered as a result of the
belated enforcement of the judgment in her favour.
32. The
Government argued that the amount claimed by the applicant was
excessive. Referring to the case of Osoian
v. Moldova (dec.), no. 31413/03,
they considered the period of non-enforcement until 29 December 2004
as being reasonable and therefore requested the Court to calculate
the interest only for the amount which remained unpaid after that
date. They employed the method of calculation used in Prodan
v. Moldova, cited above, and
asserted that the applicant should receive MDL 13,909 (EUR 845) in
respect of pecuniary damage.
- Taking
into account the approach taken in Prodan,
cited above, § 73, the Court
awards the applicant EUR
3,537, representing
the loss of interest suffered as a result of the failure of the
authorities to enforce the judgment in her favour within a reasonable
time.
B. Non-pecuniary damage
- Given
that the final judgment in favour of the applicant was eventually
enforced, the applicant claimed EUR
3,000 for non-pecuniary damage suffered as a
result of its belated enforcement.
- The
Government disagreed with the amount claimed by the applicant,
arguing that it was excessive in light of the case-law of the Court.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the delayed
enforcement of the judgment and awards her EUR 600.
C. Costs and expenses
- The
applicant claimed EUR 1,004 for costs and expenses. She submitted a
detailed time-sheet according to which the lawyer had spent 25 hours
working on the case at an hourly rate of EUR 40.
- The
Government did not agree with the amount claimed, stating that it was
excessive and that the applicant had failed to prove the alleged
representation expenses.
- The
Court reiterates 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 are reasonable as to quantum
(see, for example, Amihalachioaie v. Moldova,
no. 60115/00, § 47, ECHR 2004 ...).
- In
the present case, regard being had to the itemised list submitted and
the follow-up nature of the case, the Court awards the applicant
EUR 600 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;
- 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 the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 3,537 (three thousand five
hundred and thirty-seven euros) in respect of pecuniary damage,
EUR 600 (six hundred euros) in respect of non-pecuniary damage
and EUR 600 (six hundred euros) for 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 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 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President