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FOURTH
SECTION
CASE OF
CEBOTARI AND OTHERS v. MOLDOVA
(Applications
nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04)
JUDGMENT
STRASBOURG
27 January
2009
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 Cebotari and others v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Fatoş Aracı, Deputy Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in five applications (nos. 37763/04, 37712/04,
35247/04, 35178/04 and 34350/04) 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 Mr Nicolai Cebotari, Mr Nicolai Gorbatîi,
Ms Zinaida Curganov, Mr Ion Nedin and Mr Petru Anin (“the
applicants”), on 18 August and 8 September 2004.
- On 10 March and 1 May 2007 Mr Anin's wife – Ms
Larisa Anin, and Mr Cebotari's son – Mr Sergiu Orlov,
respectively, informed the Court that Mr Anin and Mr Cebotari had
died; they stated that they wanted the proceedings to continue. For
reasons of convenience Ms Anin and Mr Orlov will continue to be
referred to in this judgment as the applicants, although it is now Mr
Anin's widow and Mr Cebotari's son who are to be regarded as having
this status (see Vocaturo v. Italy, judgment of 24 May 1991,
Series A no. 206 C, § 2).
- Mr
Nicolai Cebotari was represented by Mr Corneliu Moraru. The Moldovan
Government (“the Government”) were represented by their
Agent, Mr Vladimir Grosu.
- The
applicants complained that the failure to enforce the judgment of 23
October 2001 violated their right to have their civil rights
determined by a court within a reasonable time, as guaranteed by
Article 6 of the Convention, and their right to peaceful enjoyment of
their possessions, as guaranteed by Article 1 of Protocol No. 1 to
the Convention.
- The applications were allocated to the Fourth Section
of the Court. On 30 August 2006 the President of that Section decided
to communicate the applications to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was also
decided to examine the merits of the applications at the same time as
their admissibility.
- Judge
Poalelungi, the judge elected in respect of Moldova, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 29 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they were content to appoint in his stead another elected
judge and left the choice of appointee to the President of the
Chamber. On 1 December 2008, the President appointed Judge Šikuta
to sit in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASES
- The
applicants, Mr Nicolai Cebotari, Mr Nicolai Gorbatîi,
Ms Zinaida Curganov, Mr Ion Nedin and Mr Petru Anin, are Moldovan
nationals, who were born in 1936, 1942, 1931, 1957 and 1939
respectively and live in Chişinău.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- The
applicants were employees of a private company (“the company”)
and were entitled to receive invalidity benefit. Since the company
stopped paying them benefit in 1998, the applicants jointly brought
an action against it, seeking payment of benefit arrears and
requiring the former to pay the benefit for the rest of their lives.
- On 23 October 2001 the Botanica District Court ruled
in favour of the applicants. It ordered the company to pay each of
them invalidity benefit for the period 1 April 2000 to 1 November
2001 as follows: 9,507 Moldovan lei (MDL) (823 euros (EUR)) to
Mr Nicolai Cebotari; MDL 6,245.4 (EUR 541) to Mr Nicolai
Gorbatii; MDL 6,320.33 (EUR 548) to Mrs Zinaida Curganov; MDL
6,345.61 (EUR 550) to Mr Ion Nedin; and MDL 8,123.61 (EUR 550) to Mr
Petru Anin. It also ordered the company to recalculate their
respective benefits periodically and to pay it for the rest of their
lives. On the same date the court issued enforcement warrants. The
company's appeal was dismissed on 8 May 2002 by the Chişinău
Regional Court and on 13 June 2002 by the final judgment of the
Court of Appeal.
- The
enforcement warrants were sent to the bailiff on 5 January 2002.
- Between
2001 and 2004 the applicants lodged numerous complaints with various
authorities about the non-enforcement of the judgment in their
favour. In its replies the Ministry of Justice informed the
applicants about the actions taken by the Bailiff's Office to enforce
the judgment. On several occasions a bailiff made enquiries of the
Tax Authority, the Land Registry and the Vehicle Registration
Department about the company's assets. He was informed that the
company held numerous bank accounts which had been frozen by the Tax
Authority, that the company did not have any real estate and that it
owned several vehicles, later found to have been dismantled and
allegedly to be of no value.
- In order to enforce the judgment in favour of the
applicants, on 5 February 2002 a bailiff seized a building,
which, according to a certificate of 22 February 2002 issued by the
Land Registry, belonged to a third company. On 25 February 2002
a court annulled the sale by auction of that building.
- On
22 July 2002 the company proposed to pay to each applicant MDL 1,300
(EUR 94), but they refused the offer.
- On 13 August 2002 a bailiff seized four items of
the company's machinery and arranged for their sale at auction. On 22
August 2002 a third party bank (“the bank”) sought
annulment of the bailiff's actions on the ground that the machinery
had been mortgaged by the company in 1996 in order to guarantee a
loan. Although the company's machinery was auctioned on 18 December
2002, following a request from the bank, on 26 December 2002 the
Botanica District Court annulled the auction. On 13 February
2003 the Botanica District Court ordered a stay of the enforcement
proceedings in respect of the seized machinery, relying on a judgment
of the Economic Court of 18 March 1999 by which a judicial dispute
between the company and the bank had been determined in favour of the
latter.
- By judgments of 21 May 2002 and 31 March 2003 the
Economic Court dismissed a third party bank action for the
institution of insolvency proceedings against the company, relying on
the company's financial report for the first quarter of 2002 and its
annual report for 2002, revealing assets worth MDL 88,291,286 (EUR
7,047,235) and MDL 83,590,250 (EUR 5,373,263), respectively.
- On
3 March 2003 a bailiff made an enquiry of the Centre for Fighting
Economic Crimes and Corruption (“CFECC”) and was informed
that the company had been inactive since 1999 and held no assets and
that on 14 June 2002 the company's accounting records had been
destroyed by fire.
- On 5 September 2003 the company became the subject of
insolvency proceedings and all enforcement proceedings against it
were suspended.
- On an unspecified date in 2004 the applicants brought
an action against the Bailiff's Office and complained that the
measures taken to enforce the judgment in their favour were
inefficient. By a decision of 11 March 2004 the Botanica
District Court upheld their action and held
that the Bailiff's Office had failed to
take effective action to enforce the judgment in favour of the
applicants and ordered it to seize the company's assets recorded in
the financial reports of 2002 (see paragraph 16 above).
- On
12 March 2004 a representative of the company informed the
bailiff in charge of the enforcement about a change of the company's
address and about the fact that it did not possess any assets in the
Botanica District. According to a report drawn up by a bailiff on
26 April 2004 the company was not located at the newly indicated
address.
- On 24 September and 7 October
2004 a bailiff requested CFECC, the Tax Authority, the Land
Registry and the Prosecutor's Office for assistance in enforcing the
judgment in favour of the applicants. According to the information
from the Department of Information Technology (“the
Department”) the company owned three trucks, and on 24 December
2004 the Botanica District Court ordered the traffic police to search
and to seize the vehicles. The decision however remained inoperative.
- On 14 December 2004 the applicants lodged with the
Botanica District Court a complaint against the bailiff's failure to
comply with the decision of the Botanica District Court
of 11 March 2004. They also sought MDL 8,000 (EUR 484) each in
compensation for pecuniary and non-pecuniary damage suffered as a
result of the inefficiency of the bailiff's actions. On 18 February
2005 the Botanica District Court dismissed their complaint on the
ground of lack of jurisdiction ratione materiae and instructed
them to initiate contentious proceedings against the bailiff.
- On 13 December 2005 the
applicants complied with the court's ruling and initiated contentious
proceedings against the bailiff. On the same date, the Botanica
District Court dismissed their action on the ground of res
judicata, referring to the
decision of the Botanica District Court
of 11 March 2004.
- In the meantime, in May 2005, a bailiff seized 49% of
the company's shares in the statutory capital of a third company as
well as eighteen items of machinery. In June and August 2005 he
requested the National Institute of criminology and judiciary (“the
Institute”) to evaluate the seized shares and assets. On both
occasions the Institute refused to comply with the bailiff's request,
stating that it had to be paid for the valuation in advance and that
it had not been provided with certain documents. On 21 November 2005
the Institute informed the bailiff that it could not comply with the
request to evaluate the shares since it did not have qualified
personnel for that purpose.
- On 5 April 2006 a private company performed an
evaluation of the shares and machinery. It estimated the value of the
latter at MDL 582,422 (EUR 36,780), but the shares could not be
evaluated since it did not have qualified personnel.
- On several occasions a bailiff requested the creditors
of the company, including the applicants, to bear the fees for the
announcement of an auction. On 7 June 2006 an auction to sell the
machinery took place but there were no buyers.
- On 19 August 2006 a bailiff fixed another date for the
auction. Since the debtors, including several State authorities, did
not comply with the bailiff's request to bear the fees for the
announcement of the auction, it has not taken place to date.
- On an unspecified date in 2006 a bailiff enforced a
2003 judgment in favour of the company, according to which it had to
be paid by private third parties MDL 25,353 (EUR 1,643). Since the
company had debts worth MDL 429,727 (EUR 24,580), on 8 December 2006
a bailiff distributed the amount recovered from the third parties
between several of the company's creditors, including Mr Nicolai
Gorbatii, Mrs Zinaida Curganov and Mr Ion Nedin, who
received MDL 1,419.43 (EUR 81), MDL 1,409.42 (EUR 80) and MDL
1,442.20 (EUR 82), respectively.
- On 18 July 2007 a bailiff evaluated 49% of the
company's shares in the statutory capital of the third company at MDL
300,000 (EUR 17,930) and seized it. The company's appeal against the
bailiff's decision was dismissed on 1 August 2007. On the same date,
the third company appealed against the bailiff's decision of 18 July
2007. The outcome of the proceedings is unknown.
- On 16 February 2008 a bailiff issued a decision
according to which the following amounts were to be distributed to
the applicants: MDL 821.32 (EUR 50) to Mr Nicolai Cebotari; MDL
528.43 (EUR 32) to Mr Nicolai Gorbatii; MDL 524.70 (EUR 32)
to Mrs Zinaida Curganov; MDL 536.91 (EUR 33) to Mr Ion Nedin; and MDL
687.35 (EUR 42) to Mr Petru Anin.
- On 18 March 2008 Mr Gorbatii and Mr Nedin received
MDL 1,947.86 (EUR 115) and MDL 1,979.11 (EUR 117), respectively.
- The
judgment of 23 October 2001 in favour of the applicants has not been
fully enforced to date.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been set out in Prodan v. Moldova
(no. 49806/99, ECHR 2004 III (extracts)).
THE LAW
- The
applicants complained under Article 6 § 1 and Article 1 of
Protocol No. 1 to the Convention about the failure to fully
enforce the judgment of 23 October 2001.
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. ADMISSIBILITY OF THE COMPLAINTS
- The
Court considers that the period to be taken into consideration began
on 13 June 2002, when the judgment in favour of the applicants became
final, and continues to date, since the applicants have only been
partially paid the sums due. It thus lasted six years and six months.
- The
Court considers that the applicants' 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 5 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the failure to fully enforce the judgment
of 23 October 2001 had violated their rights under Article 6 § 1
of the Convention.
- The
Government submitted that the circumstances of the case should be
examined in the light of their complexity, the conduct of the
applicants and that of the authorities. They further advocated that
the domestic authorities had fulfilled their positive obligations to
ensure the enforcement of the final judgment in favour of the
applicants. They also argued that on 5 September 2003 the
company became the subject of insolvency proceedings and it could no
longer fulfil its obligations in respect of the applicants. The
Government submitted that the State did not have shares or other
forms of participation in the debtor company and therefore could not
be held responsible for its debts. They pointed out that the bailiff
had taken reasonable steps and had even seized and auctioned the
company's assets; however, the auctions had later been annulled at
the request of third companies.
- The Court reiterates that execution of a final
judgment given by any court must be regarded as an integral part of
the “trial” for the purposes of Article 6 of the
Convention. (see Hornsby v. Greece, 19 March 1997, § 40,
Reports 1997 II, and Immobiliare Saffi v. Italy
[GC], no. 22774/93, § 63, ECHR 1999 V). However, the
right of “access to court” does not impose an obligation
on a State to execute every judgment of a civil character without
having regard to the particular circumstances of a case (see Sanglier
v. France, no. 50342/99, § 39, 27 May
2003). The Court noted that State responsibility for enforcement of a
judgment against a private company extends no further than the
involvement of State bodies in the enforcement procedures (see Fuklev
v. Ukraine, no. 71186/01, § 67 and §§
90-91, 7 June 2005). When the authorities are obliged to act in
order to enforce a judgment and they fail to do so, their inactivity
can engage the State's responsibility on the ground of Article 6 § 1
of the Convention (see Scollo v. Italy, 28 September
1995, § 44, Series A no. 315-C).
- The Court is not called upon to examine whether the
internal legal order of the State is capable of guaranteeing the
execution of judgments given by courts. Indeed, it is for each State
to equip itself with legal instruments which are adequate and
sufficient to ensure the fulfilment of positive obligations imposed
upon the State (see Ruianu v. Romania, no. 34647/97,
§ 66, 17 June 2003). The Court's only task is to examine
whether the measures applied by the Moldovan authorities in the
present case were adequate and sufficient. In cases such as the
present one, which necessitate actions by a debtor who is a private
person, the State, as the possessor of the public force, has to act
diligently in order to assist a creditor in execution of a judgment
(see Fociac v. Romania, no. 2577/02, § 70, 3
February 2005).
- On the facts of the present case the Court firstly
notes that the company was made subject to insolvency proceedings on
5 September 2003 (see paragraph 18 above). The Government considered
this as an important argument for the bailiff not being able to
ensure the enforcement of the final judgment in favour of the
applicants. The Court, taking into account the considerations as to
the liability of the State for the acts or omissions of private
persons (see paragraphs 39 and 40 above), finds that there was a lack
of action on the part of the bailiff between 13 June 2002 and
11 March 2004, as was acknowledged by the Botanica District
Court on 11 March 2004 (see paragraph 19 above), to enforce the
judgment given in the applicants' favour. It also considers that even
though the domestic courts declared the bailiff liable for the delay
in enforcement, they did not afford any redress or reparation for its
failure (see paragraphs 19, 22 and 23 above).
The
Court further notes that the Government's argument as to the
impossibility to enforce the judgment due to the company's insolvency
is refuted by the bailiff's subsequent successful actions to seize
its assets and partially pay the applicants the sums due (see
paragraphs 28, 30 and 31 above).
- Secondly, the Court does not find pertinent the
Government's argument that the bailiff had taken reasonable steps to
ensure the enforcement of the judgment in favour of the applicants by
auctioning the company's real estate. It is to be noted that the
bailiff had access to the Land Register at any time and could have
acted more diligently by checking before the auction whether the real
estate to be sold belonged to the company (see paragraph 13 above),
thus avoiding annulment of the auctions by third parties.
- Thirdly, the Court points out that the measures
ordered by the domestic courts to search for and seize the vehicles
owned by the company have remained ineffective to date (see paragraph
21 above).
- Fourthly,
the Government did not put forward any argument to explain the
belated seizure of the company's shares and assets in the third
company (see paragraph 24 above). Nor did it provide any explanation
for the delay in valuing those shares and assets (see paragraphs 24,
25 and 29 above). To that end, it is to be noted that the applicants
failed to pay for the valuation of the company's shares and assets
(see paragraph 24 above) and to bear the fees for the announcement of
the auction (see paragraphs 26 and 27 above). The Court, therefore,
considers it necessary to examine whether the applicants' conduct
hindered the bailiff's actions to enforce the judgment in their
favour.
- The
existence of a final and enforceable judgment in the applicants'
favour stands as an indication of the fact that their litigation was
meritorious. Consequently, the imposition of the obligation to pay
expenses in order to have that judgment enforced constitutes a
restriction of a purely financial nature and therefore calls for
particularly rigorous scrutiny from the point of view of the
interests of justice (see Podbielski and PPU Polpure v. Poland,
no. 39199/98, § 65, 26 July 2005).
- The
Court notes that the company owed different sums to numerous private
parties as well as to State authorities (see paragraph 27 above). In
their letters to the applicants the enforcement authorities had never
specified what proportion of the enforcement-related expenses was to
be borne by the applicants and whether they were to be fully
reimbursed after the enforcement. The Government also failed to
produce any evidence that the State authorities, who were also
creditors of the company, had paid their part of the
enforcement-related expenses and that the only reason the auction
could not be organised by the bailiff was because the applicants had
failed to bear their parts of the fees for the announcement of the
auction.
- The Court reiterates that fulfilment of the obligation
to secure effective rights under Article 6 § 1 of the Convention
does not mean merely the absence of an interference but may require
the State to take various forms of positive action (see Kreuz
v. Poland, no. 28249/95, § 59,
ECHR 2001 VI). It considers that by shifting to the
applicant the responsibility of bearing part of the costs of the
enforcement proceedings the State tried to escape its positive
obligation to organise a system for enforcement of judgments that is
effective both in law and in practice (see Apostol v. Georgia,
no. 40765/02, § 64, ECHR 2006 ...).
- Finally,
according to the judgment in favour of the applicants, the Botanica
District Court ordered the company not only to pay them invalidity
benefit for the period 1 April 2000 – 1 November 2001, but also
to recalculate their benefit periodically and to pay it until the end
of their lives (see paragraph 10 above). The Court observes that the
Government did not submit any evidence that the bailiff had complied
with this part of the judgment and had calculated the applicants'
outstanding invalidity benefits, if not paid.
- The Court considers therefore that the failure of the
bailiff to act for well over six years and six months or to
effectively control the enforcement proceedings in the present cases
is sufficient to conclude that there has been a violation of Article
6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
-
Having regard to its case-law, the Court notes that it has already
established the principles relating to the alleged violation of the
applicant's property rights owing to the State's failure to ensure
the enforcement of a final judgment issued against a private party.
In particular, in the case of Fuklev v. Ukraine the Court
found as follows:
“89. The Court reiterates that by
virtue of Article 1 of the Convention, each Contracting Party 'shall
secure to everyone within [its] jurisdiction the rights and freedoms
defined in ... [the] Convention'. The obligation to secure the
effective exercise of the rights defined in that instrument may
result in positive obligations for the State. In such circumstances,
the State cannot simply remain passive and 'there is ... no room to
distinguish between acts and omissions'....
91. As regards the right guaranteed by
Article 1 of Protocol No. 1, those positive obligations may entail
certain measures necessary to protect the right to property even in
cases involving litigation between private individuals or companies.
This means, in particular, that States are under an obligation to
ensure that the procedures enshrined in the legislation for the
enforcement of final judgments... are complied with.
92. The Court considers that the failure of
the bailiffs to act and the domestic courts' failure to exercise
appropriate control over the situation, created permanent uncertainty
as to the enforcement of a judgment in the applicant's favour and as
to the payment of the debt owed to him. Consequently, the applicant
had to cope with that uncertainty during a lengthy period of time...
93. Having regard to the foregoing
considerations and to its findings in respect of Article 6 § 1
of the Convention, the Court is of the view that the manner in which
the enforcement proceedings were conducted, their total length and
the uncertainty in which the applicant was left, upset the 'fair
balance' that had to be struck between the demands of the public
interest and the need to protect the applicant's right to the
peaceful enjoyment of his possessions. Consequently, the State failed
to comply with its obligation to secure to the applicant the
effective enjoyment of his right of property, as guaranteed by
Article 1 of Protocol No. 1.” (no. 71186/01, 7 June 2005)
- The
Court sees no reasons to depart from these findings in the present
cases. Applying these principles and having regard to the findings
set out in paragraphs 41, 42, 43, 47 and 49 above, the Court
considers that owing to the bailiffs' failure to take adequate and
sufficient measures with a view to securing enforcement of the
judgment in favour of the applicants, they were left for many years
in a situation of uncertainty and since 2002 have been unable to
fully enjoy their possessions. Accordingly, there has been a
violation of Article 1 of Protocol No. 1.
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. Damage
- Mr
Nicolai Gorbatîi was the sole
applicant who submitted his claims for just satisfaction within the
time-limit allowed by the Court. He claimed MDL 47,488.22 (EUR 2,779)
in respect of pecuniary damage and EUR 30,000 in respect of
non-pecuniary damage caused to him by the failure to enforce the
final judgment in his favour. The rest of the applicants claimed EUR
50,000 under the same heads in their initial applications before the
Court.
- The
Government commented only on the claims for just satisfaction
submitted by Mr Gorbatîi and
considered that the amounts were excessive and unsubstantiated. In
view of the fact that the rest of the applicants had not submitted
any claim, they considered that no award should be made.
- The Court first notes that the judgment in favour of
the applicants has been partially enforced (see paragraphs 28, 30 and
31 above). They are therefore still entitled to receive their
outstanding invalidity benefits for the period 1 April 2000 until 1
November 2001 (see paragraph 10 above). The Court further points to
the fact that according to the same judgment the Botanica District
Court ordered the company to recalculate their benefits periodically
and to pay it for the rest of their lives. The Court, therefore,
notes that the State's outstanding obligation to ensure the effective
enforcement of the judgment in the applicants'
favour is not in dispute. Accordingly, the applicants are still
entitled to recover the remaining part of their judgment debts in the
domestic proceedings and to be paid the recalculated benefits for the
rest of their lives, except Mr Anin and Mr Cebotari for the
latter case (see paragraph 2 above). The Court reiterates that the
most appropriate form of redress in respect of a violation of Article
6 is to ensure that the applicants as far as possible are put in the
position they would have been had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50), 26
October 1984, § 12, Series A no. 85, and, mutatis
mutandis, Gençel v. Turkey, no. 53431/99,
§ 27, 23 October 2003). The Court finds that in the present
cases this principle also applies, having regard to the violations
found. It therefore considers that the Government shall secure, by
appropriate means, the compliance with the judgment of 23 October
2001 in respect of the applicants.
- As
regards the applicants' claims in respect of non-pecuniary damage,
the Court considers that the applicants suffered distress, anxiety
and frustration exacerbated by the unreasonable length of the
enforcement proceedings and the domestic authorities' failure to
secure enforcement of the judgment of 23 October 2001. However, the
amount claimed by Mr Gorbatîi in
his claims for just satisfaction and those claimed by the rest of the
applicants in their initial applications appear excessive. Making its
assessment on an equitable basis, the Court awards the applicants
EUR 2,000 each in respect of non-pecuniary damage.
B. Costs and expenses
The
applicants made no claims under this head.
C. 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
- Joins the applications;
- Declares the applications admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the late
enforcement of the judgment of 23 October 2001;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention on account of the same delayed
enforcement;
- Holds
(a) that
the respondent State shall secure, by appropriate means, the
enforcement of the judgment of 23
October 2001;
(b) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand 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;
(c) 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
