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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
41304/04
by Marcel GHIŢĂ
against Romania
The
European Court of Human Rights (Third Section), sitting on 31 May
2011 as a Committee composed of:
Egbert
Myjer,
President,
Luis
López Guerra,
Mihai
Poalelungi,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
regard to the above application lodged on 8 November 2004,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Marcel Ghiţă, is a Romanian national who was
born in 1949 and lives in Bucharest. He was represented before the
Court by Mr Costel Alaci, a lawyer practising in Bucharest. The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
22 February 2002, by an order issued by the president of the Romanian
Court of Accounts, the applicant was dismissed from his position of
director of the Department for financial control. By a subsequent
order of 25 February 2002 he was appointed as financial inspector,
class I, within the same department. A new order issued on 11 March
2002 changed again the applicant’s position into assistant
financial inspector with a substantial decrease in his salary.
- On
5 March 2002 the applicant’s request to be transferred to the
Athenaeum University was approved by the president of the Court of
Accounts.
- On
14 May 2002 the applicant challenged the above mentioned three orders
before the courts, seeking the reinstatement in his position as a
director within the Romanian Court of Accounts and the payment of
salary arrears.
- On
22 August 2002 the Bucharest County Court partially allowed the
applicant’s action and annulled solely the order of 11 March
2002. The court ordered the applicant’s reinstatement on the
position of financial inspector as provided by the order of 25
February 2002 as well as the payment of the salary due for this
position starting from 11 March 2002 and until the date of the actual
reinstatement. On 13 November 2002 the Bucharest Court of Appeal
upheld this judgment by a final decision.
- On
17 December 2002 the Court of Accounts received a request sent by the
applicant through the intermediary of a bailiff’s office
seeking the enforcement of the above mentioned final judgment.
- By
an order issued by the president of the Romanian Court of Accounts on
8 January 2003, the applicant was reinstated in his position of
financial inspector as provided by the order of 25 February 2002 for
a period starting from 19 February 2002 and until 5 March 2002, the
date of his transfer to the Athenaeum University.
- On
14 March 2003 the Court of Accounts requested before the courts the
annulment of the enforcement proceedings instituted by the applicant
on 17 December 2002, in so far as the court’s order had already
been complied with.
- By
a final judgment delivered on 13 October 2003 the Bucharest County
Court annulled the enforcement proceedings holding that the judgment
of 22 August 2002 had already been fully enforced by the order of
8
January 2003 issued by the president of the Court of Accounts. In
this respect the court considered that the obligation to reinstate
the applicant in his former position and payment of due salary rights
concerned only the period of time until 5 March 2002, the date of the
applicant’s transfer to another institution.
B. Relevant domestic law and practice
- The relevant domestic law
concerning the execution of final judgments, namely excerpts of the
Civil Procedure Code and Law no. 188/2000 on the powers and
functions of bailiffs, is summed up in the Court’s judgment in
the case of Topciov v. Romania
((dec.), no. 17369/02, 15 June 2006).
COMPLAINTS
- The
applicant complained of the non-enforcement of the judgment of 22
August 2002 of the Bucharest County Court which infringed his rights
under Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 to the Convention.
THE LAW
- The
applicant alleged that the judgment of 22 August 2002 of the
Bucharest County Court had not been enforced, since his employer, the
Romanian Court of Accounts, had reinstated him only until 5 March
2002. He relied on Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 to the Convention, which, in so far as relevant,
read as follows:
Article 6
§ 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
1 of Protocol No. 1
“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.”
- The
Government rejected the allegation.
- In
the assessment of the circumstances of the present case the Court
notes that the applicant’s allegation concerning the
non-enforcement of the 22 August 2002 judgment has already been
analysed by a domestic court. In particular, in its final judgment of
13 October 2003 the Bucharest County Court held that by the order of
8 January 2003 the president of the Court of Accounts had fully
executed the judgment under dispute. In the light of all the material
before it, the Court sees no reason to depart from the domestic
court’s findings in the present case.
- It
follows that the applicant’s complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Egbert Myjer
Deputy Registrar President
