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FOURTH
SECTION
CASE OF
AVRAM v. MOLDOVA
(Application
no. 2886/05)
JUDGMENT
STRASBOURG
9 December
2008
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 Avram v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2886/05) 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, Ms Natalia Avram (“the
applicant”), on 14 December 2004.
- The
applicant was represented by Mr N. Malanciuc, a lawyer practising in
Sîngerei. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that the belated compliance by the
authorities with a final judgment dated 9 June 2004 in her favour had
violated her rights guaranteed by Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On 30
November 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1935 and lives in Grigoreşti.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1996 the applicant received from the local authority in the village
of Alexandreni a plot of land which she still uses. She was not,
however, given title to the land, so in December 2003 she requested
the local authority to transfer title to her.
- On
20 February 2004 her request was turned down. She then brought court
proceedings for the annulment of that decision and an order requiring
the local authority to grant her title to the land. She explained
that she continued to use it but needed a document proving her
ownership.
- On
9 June 2004 the Sîngerei District
Court granted her request and ordered the local authority to transfer
title to her. No appeal was lodged and the judgment became final and
enforceable 15 days later.
- The
applicant obtained a warrant of execution which she lodged with the
Decisions Enforcement Department of the Ministry of Justice (“the
Department”) on 19 July 2004. On 26 July 2004 the Department
requested the local authority to comply with the warrant.
- According to documents submitted by the Government, on
27 July 2004 the local authority annulled its decision of 20
February 2004 and granted the applicant title to the land. According
to the applicant, she was not informed of that decision.
- On
16 February 2005 the applicant's representative asked for the
Department's assistance in enforcing the judgment of 9 June 2004.
- In a letter to the applicant dated 21 March 2005, the
Department informed her that on 10 January 2005 the warrant of
execution had been served on the Alexandreni local authority, but
that the authority had still not complied with the judgment. The
Department also informed the applicant that it was preparing
documents with a view to inviting the court to penalise those
responsible for the failure to comply with the judgment.
- On 20 September 2005 the applicant's representative
again asked for the Department's assistance in enforcing the judgment
of 9 June 2004. It is unclear whether he received any answer.
- On 14 December 2005 the Sîngerei
branch of the Bălţi Territorial Cadastral Office
issued the applicant with the cadastral plan of the land. On
26 December 2005 the applicant paid for the registration of her
title at the Territorial Cadastral Office in Bălţi.
- Following
a request on 22 May 2006, the applicant obtained registration of her
title to the land on 30 May 2006.
- On 15 February 2007 the Department asked the Sîngerei
Cadastre Office for information about the date and number of the
registration of the applicant's title to the land.
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
Enforcement Code (no. 443 of 22 December 2004, which has been in
force since 1 July 2005) read as follows:
Article 79 – Discontinuance of enforcement
proceedings.
“Enforcement proceedings shall be discontinued
when:
(a) the judgment has been enforced...”
Article 80 – Manner of suspending or
discontinuing enforcement proceedings.
“(1) Decisions to suspend or
discontinue enforcement proceedings shall be taken by the head of the
enforcement office, after the creditor and debtor have been notified.
The absence of the creditor or debtor shall not prevent the adoption
of such decisions.
... (3) The decision to suspend or
discontinue the enforcement proceedings shall, within three days from
its adoption, be served on the parties and the authority which issued
the warrant of execution...”
THE LAW
- The
applicant complained that the failure to enforce the final judgment
of 9 June 2004 within a reasonable time had violated her rights, as
guaranteed by Article 6 § 1 of the Convention, the relevant
part of which reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
within a reasonable time ...”
I. ADMISSIBILITY
- The
Court considers that the applicant's complaint under Article 6
§ 1 of the Convention raises questions of law which are
sufficiently serious for their determination to depend on an
examination of the merits. No grounds for declaring this complaint
inadmissible have been established. The Court therefore declares it
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 this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the delay in complying with the judgment of
9 June 2004 had amounted to a violation of Article 6 § 1 of the
Convention. She had not been informed of the decision of 27 July 2004
and neither had the enforcement authorities.
- The
Government submitted that the judgment in the applicant's favour had
been complied with on 27 July 2004. The fact that her title to the
land had not been registered until 30 May 2006 was fully attributable
to her own failure to apply for registration following the local
authority's decision of 27 July 2004.
- The
Court reiterates that “Article 6 § 1 secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal; in this way it
embodies the 'right to a court', of which the right of access, that
is the right to institute proceedings before courts in civil matters,
constitutes one aspect”. Moreover, “[e]xecution of a
judgment given by any court must ... be regarded as an integral part
of the 'trial' for the purposes of Article 6” (see the Hornsby
v. Greece, 19 March 1997, § 40, Reports of Judgments and
Decisions 1997-II, and Prodan v. Moldova, no. 49806/99,
§ 52, ECHR 2004 III (extracts)).
- The Court considers that the decision of 27 July 2004
(see paragraph 11 above) constituted formal compliance with the
judgment of 9 June 2004. However, it also finds that in practical
terms compliance was complete only when the applicant was informed of
that decision and was thus able to apply for the registration of her
title. Indeed, that was the sole purpose of the court proceedings
initiated by the applicant. The Court will therefore examine whether
the applicant was informed in a timely manner of the decision to
comply with the court judgment.
- The
Court notes that there is nothing in the case file to confirm that
the applicant was informed of the decision of 27 July 2004. On the
contrary, her representative asked for the Department's assistance in
enforcing the judgment as late as September 2005 (see paragraph 14
above). Moreover, it appears that the Department itself was not aware
of the decision until February 2007 (see paragraph 17 above). While
the discontinuance of enforcement proceedings required a formal
decision to that effect both under the Enforcement Code (see
paragraph 19 above) and in accordance with the practice followed
before the entry into force of that Code, no evidence of such a
decision exists in the case file. There is, moreover, no mention of
either the decision of 27 July 2004 or any decision to discontinue
the enforcement proceedings in the letters from the Department in
response to the complaints lodged by the applicant's representative
in 2005. The Department would not have prepared the documents with a
view to penalising the local authority's representatives in 2005 (see
paragraph 13 above) had it been aware of the decision of 27 July
2004. This conclusion is supported by the Department's decision to
serve the warrant of execution in January 2005 (see paragraph 13
above).
- The
above leads the Court to conclude that the applicant was unaware of
the existence of the decision of 27 July 2004 until December 2005,
when she applied for registration of her title (see paragraph 15
above).
- In
view of its conclusions in the preceding paragraph and in paragraph 25
above, the Court considers that the judgment of 9 June 2004 was not
fully complied with for a period of approximately 18 months. It notes
that although a decision was taken in purported compliance with the
judgment in the applicant's favour, it was not brought to her
attention or to the attention of the Department. It also appears
that, apart from serving the warrant of execution and preparing
documents with a view to penalising the local authority's
representatives, the Department did not take any effective action to
secure compliance. Had it done so, it would undoubtedly have found
out about the decision of 27 July 2004.
- The
Court therefore concludes that there were no valid factual reasons
for the delay in fully enforcing the judgment by informing the
applicant of the decision of 27 July 2004 and that the sole cause of
that delay was the failure by the various State authorities to
perform their functions properly.
- The
Court notes that it has found violations of Article 6 § 1 of the
Convention in numerous cases concerning delays in complying with or
enforcing final judgments (see, among other authorities, Prodan,
cited above, § 56 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, §
36, 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,
for the reasons given in the cases cited above, the Court finds that
the failure to enforce the judgment of 9 June 2004 within a
reasonable time constitutes 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.”
- The
applicant submitted her claims for just satisfaction outside the
time-limit set by the Court. Accordingly, and in view of the fact
that she has been able to use her land throughout the proceedings,
the Court considers that no award under Article 41 of the Convention
is warranted in the present case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
