In the case of Sholokhov v. Armenia and the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Ineta Ziemele,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 26 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 40358/05)
against the Republic of Armenia and 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 Valentin
Sholokhov (“the applicant”), on 16 October 2005.
. The applicant
was represented by Mr S. Corceac, a lawyer practising in Chişinău. The
Armenian Government were represented by their Agent, Mr G.
Kostanyan, Representative of the Republic of
Armenia at the European Court of Human Rights. The Moldovan Government were
represented by their Agent, V. Grosu, Representative of the Republic of Moldova at the European Court of Human Rights.
The applicant complained, inter alia, that
the refusal by the Armenian courts to recognise and execute the final court
judgment of 27 March 2003, taken in his favour, violated his rights under
Article 6 of the Convention and Article 1 of Protocol No. 1.
On 11 December 2008 the application was
communicated to the Governments of Armenia and the Republic of Moldova. It was also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1). Following the resignation of Mr Mihai Poalelungi,
the judge elected in respect of the Republic of Moldova (Rule 6 of the Rules of
Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad hoc
judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1945 and lives in Chisinau.
A. Background to the case
In May 1971 the applicant, who was living in Yerevan at that time, suffered an injury at work, namely a spinal fracture, while working
at the Yerevan Meat Factory, a State-owned enterprise. He was recognised as a
disabled person of the first degree, in need of constant nursing, and was
granted a monthly disability allowance.
On 25 February 1972 the administration of the
Meat Factory acknowledged its liability for the accident and awarded the
applicant monthly payments for life, equivalent to the difference between the
disability allowance and the average wage.
B. The first and the second sets of proceedings instituted
by the applicant
On an unspecified date the applicant, who by that
time had apparently moved to the Moldovan SSR, instituted proceedings in the
local courts against the Meat Factory, seeking damages.
On 20 November 1973 the Leninskiy District Court
of Chisinau ordered the Meat Factory to pay the costs of nursing: a lump sum of
1,375 roubles and monthly payments of 62.50 roubles for the period between
29 October 1973 and 20 August 1975, the latter being the date when the
applicant was supposed to undergo his regular disability examination. On 16
January 1974 the Civil Chamber of the Supreme Court of the Moldovan SSR
modified this judgment by decreasing the awarded sums to 882 roubles and 40
roubles respectively.
It appears that on an unspecified date the
applicant was granted disability status for life, with 100% loss of capacity
for work. It further appears that the Factory
continued to make the monthly payments on a voluntary basis after August 1975.
On an unspecified date in the late 1980s the
applicant instituted proceedings against the Meat Factory seeking further
damages for the cost of supplementary medical care and extra nutrition.
On 15 January 1988 the Ordzhonikidzenskiy
District Court of Yerevan granted the applicant’s claims and ordered the Meat
Factory to pay a lump sum of 5,430 roubles for the cost of supplementary
medical care between 1971 and 1986, a lump sum of 400 roubles for the period
between November 1986 and June 1987 and a lump sum of 4,655 roubles for the
cost of extra nutrition for the period between October 1971 and June 1987 (hereafter “the 1988 judgment”). The District Court
further ordered the Meat Factory to pay the applicant, with effect from the
date of the judgment, 119.63 roubles monthly for supplementary medical care and
extra dietary needs.
No appeal was lodged, so this judgment became
final.
It appears that the factory stopped making
monthly payments to the applicant starting from 1 January 1992.
On 14 June 1995 the Yerevan Meat Factory, which
by that time had already been renamed the “Urartu Production Unit”, was
restructured into the Urartu Production Unit Meat Factory of Yerevan Open Joint-Stock
Company (hereafter the Urartu OJSC) and was subsequently privatised. According
to the statute of the company, the Urartu OJSC was considered as a legal
successor of the Urartu Production Unit.
. By
a letter of 26 July 1995, the general director of the Urartu OJSC, R.D.,
informed the Society of Disabled Persons of Moldova that the factory had been experiencing
financial problems and was not able to make the payments. The general director
pledged to restart the payments notwithstanding these problems.
On 14 January 1997 the Erebuni District People’s
Court of Yerevan, pursuant to the provisions of the Enterprises and Private Entrepreneurs
Bankruptcy Act, declared the Urartu OJSC bankrupt. On 28 April 1997 the company
was put up for auction and sold to a private person. On 12 May and 2 June 1997
respectively the District People’s Court declared the private person the new
owner of Urartu OJSC and concluded the bankruptcy proceedings by releasing the
debtor company from repayment of any debts. The Urartu OJSC, in turn, adopted a
new statute according to which it was not considered
as a legal successor of any other company and was not liable for any other
company’s debts.
. By
a letter of 13 April 2001 the Ministry of Justice of Moldova (the MJM) informed
the Ministry of Justice of Armenia (the MJA) about the applicant’s allegations
of non-enforcement of the 1988 judgment. Commenting on the fact that the Urartu
OJSC was experiencing financial difficulties, the MJM drew attention to Article
7 of the Convention on Mutual Recognition of the Right to Compensation for
Damage Caused to Employees by an Injury, an Occupational Disease or Other
Damage to Health Related to the Performance of their Professional Duties,
signed in Moscow on 9 September 1994 (Соглашение
о взаимном
признании
прав на возмещение
вреда,
причиненного
работникам
увечьем,
профессиональным
заболеванием
либо иным
повреждением
здоровья,
связанные с
исполнением
ими трудовых
обязанностей
– “the Moscow Convention”) and asked the MJA to inform it about the outcome of its
inquiry.
. By
a letter of 25 June 2001 the MJA informed the MJM that, provided that the
applicant submitted all the duly completed documents, it was prepared to
forward these documents to the relevant court to have the judgment in question
enforced as required under the agreements of the Commonwealth of Independent
States (CIS).
. On
19 November 2001 the applicant submitted a letter to the MJM complaining, inter
alia, about the non-enforcement of the 1988 judgment and asking to have the
arrears paid and the monthly payments resumed.
. By
a letter of 7 December 2001 the MJM forwarded the applicant’s letter to the
MJA.
. On
an unspecified date the applicant wrote to the MJA, informing it that its
request for duly completed documents must have been a misunderstanding since
his complaints concerned the non-enforcement of a judgment adopted by the
Armenian courts as opposed to a foreign judgment.
. The
MJM addressed a letter to the MJA on 2 August 2002 with a similar content,
attaching a copy of the 1988 judgment and stating that all the requisite
enforcement documents were in the possession of the Armenian authorities.
. By
a letter of 20 September 2002 the MJA informed the MJM that it had applied to
the Erebuni and Nubarashen District Court of Yerevan with an inquiry about the
reasons for non-enforcement of the 1988 judgment.
. By
a letter of 21 November 2002 the MJA informed the MJM that, on 14 January
1997, Urartu OJSC had been declared bankrupt, sold to a third party by auction
and that it was not considered as a legal successor of any other company and
was not liable for any other company’s debts.
. On
an unspecified date the applicant wrote to the General Prosecutor of Armenia and the MJA stating that the above reply contradicted Article 7 of the Moscow
Convention which was to be applied in his case if Urartu OJSC had been
liquidated.
. On
an unspecified date the applicant wrote to the MJA, arguing that Urartu OJSC
could not be considered as liquidated and that, in any case, Article 7 of
the Moscow Convention was to be applied. In the same period he wrote to the
MJM, complaining about its failure to react under Articles 10 and 11 of
the Moscow Convention to the non-compliance of the Armenian authorities with
Article 7 of that Convention.
. It
appears that the applicant continued to complain to various authorities about
the non-enforcement of the 1988 judgment. By a letter of 3 April 2006 the
Ministry of Labour and Social Affairs of Armenia, in reply to the applicant’s
complaint addressed to the Russian parliament, informed him that, according to
Paragraph 16 of the Government decree no. 576 of 15 November 1992 which
was no longer in force since 26 August 2004, in the event of liquidation of a
company damage was to be compensated by the social security authorities with
funds allocated from the State budget. The applicant could have applied to the
competent authorities to obtain such compensation, which he had failed to do.
Therefore the questions raised by the applicant in his complaint fell outside
the competence of the administrative authorities. The applicant was advised to
apply to the courts.
C. The third set of proceedings instituted by the
applicant
On an unspecified date the applicant instituted
proceedings in the Moldovan courts against Urartu OJSC, alleging that the
latter had stopped making any payments on 1 January 1992 and seeking further
damages for (a) the costs of medicine, (b) the costs of prosthetics and a
wheelchair once every five years, (c) the costs of domestic services, (d) the
costs of sanitary and health resort treatment, including the voucher and the
travel costs for himself and an accompanying person, (e) the costs of bed
linen, (f) the costs connected with the purchase of a vehicle, its major
repairs and fuel, (g) the costs of physiotherapy, massage, rental of equipment,
and the fees of an instructor and masseur, and (h) the costs connected with the
purchase of accommodation and its maintenance. The costs under items (a)-(g)
were claimed for the period between January 1992 and December 2001. The
applicant submitted that he had applied to the management of Urartu OJSC with
the above claims but had been refused.
On 27 March 2003 the Ciocana District Court of
Chisinau found Urartu OJSC to be the legal successor of the Yerevan Meat
Factory and granted the applicant’s claims under items (a)-(g), awarding him a
total of 17,884 United States dollars, while rejecting his claim under
item (h) (hereafter “the 2003 judgment”). This judgment
was subject to appeal within 15 days after its delivery.
On an unspecified date the applicant lodged an
appeal, seeking to have his claims granted in full.
On 21 July 2003 Mr R.D. also lodged an appeal, apparently in his capacity as the general director of the company.
On 22 October 2003 the Civil Panel of the
Chişinău Court of Appeal upheld the 2003 judgment in the final
instance.
. It
appears that the applicant, in the meantime, requested the MJM to assist him in
the recognition and execution of the 2003 judgment on the territory of
Armenia in accordance with the Convention on Legal Assistance and Legal
Relations in Civil, Family and Criminal Matters signed in Minsk on 22 January
1993 (Конвенция
о правовой
помощи и
правовых отношениях
по
гражданским,
семейным и
уголовным
делам – “the Minsk Convention”). It further appears that on
1 September 2003 the MJM forwarded the applicant’s request, including all the
necessary documents, to the MJA.
. By
a letter of 20 January 2004 the MJA informed the applicant that his request for
the recognition and execution of the 2003 judgment had been forwarded to the
competent Armenian court.
On 4 March 2004 the Erebuni and Nubarashen
District Court of Yerevan granted the applicant’s request by recognising the
2003 judgment and ordering its enforcement.
On an unspecified date Mr R.D. lodged an appeal
against this decision.
On 23 April 2004 the Civil Court of Appeal of Armenia decided to dismiss the applicant’s request. In this respect, the Court of Appeal mentioned
that, by the 1988 judgment, the applicant was awarded monthly payments for
medical care and extra nutrition, and quoted Article 55 (c) of the Minsk
Convention.
On an unspecified date the applicant lodged an
appeal on points of law, in which he argued that the subject matter of the 1988
and 2003 proceedings was different and that, in any event, the defendant had
stopped making any payments on 1 January 1992.
On 17 September 2004 the Court of Cassation dismissed
the applicant’s appeal as unsubstantiated by upholding the findings of the
Civil Court of Appeal. A copy of this decision was received by the applicant on
an unspecified date after 19 April 2005.
On 22 November 2007 the MJM addressed a letter
to the MJA seeking to find out the official position of the Armenian
authorities on the interpretation and application of the Moscow Convention to
the applicant’s case and the possibility of an unbiased examination by an
Armenian court of the issue of the execution of the 2003 judgment. It is not
clear if there was any reply to this letter by the
MJA.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. The Armenian Constitution of 1995 (following the
amendments introduced on 27 November 2005 with effect from 6 December 2005)
According to Article 6, international agreements
are an integral part of the legal system of Armenia.
B. The Moscow Convention (in force in the Republic of Moldova and Armenia from 7 and 27 October 1995 respectively)
The relevant provisions of the Moscow Convention
provide:
Article 1
“This Convention covers enterprises,
agencies and organisations of Contracting Parties (including those of the
former USSR) irrespective of their form of ownership (hereafter, the
enterprises).
Compensation payments for damage
caused to employees by an injury, an occupational disease or other damage to
health related to the performance of their professional duties (hereafter,
compensation for damage) are made to the employees who have previously worked
at the enterprises, or in case of their death to persons entitled to
compensation for damage, and who are nationals of and permanent residents in
any of the Contracting Parties. ...”
Article 2
“Compensation for damage caused to an
employee as a result of an occupational injury, other damage to health
(including cases where the loss of capacity to work as a result of an accident
at work connected with the performance of professional duties by employees
occurs after the injured person has moved to another Contracting Party) or
death is paid by the employer of the Contracting Party whose laws were
applicable to the employee at the time of the injury, other damage to health or
death.
The employer responsible for causing
damage pays compensation pursuant to the domestic law.”
Article 7
“In case of liquidation of the
enterprise responsible for damage caused to an employee and in the absence of a
legal successor, the Contracting Party on whose territory the enterprise was
liquidated guarantees compensation for damage to such employees pursuant to the
domestic law.”
Article 8
“A court of the Contracting Party on whose territory the action
incurring a liability for damages has taken place, or a court of the Contracting
Party on whose territory persons entitled to compensation for damage reside
enjoy jurisdiction over the cases as provided for in the present Convention.”
Article 10
“Disputes concerning interpretation
or application of this Convention are resolved through negotiations between the
Contracting Parties concerned and other generally accepted means, including
conciliation commissions set up upon the request of one of the Contracting
Parties.”
Article 11
“Issues not regulated by this Convention, including those
related to its application, are examined by the competent authorities of the
Contracting Parties.”
C. The Minsk Convention (in force in Armenia and the Republic of Moldova from 21 December 1994 and 26 March 1996 respectively)
The relevant provisions of Section III of the
Minsk Convention, entitled “Recognition and Execution of Decisions”, provide:
Article 51: Recognition and execution of decisions
“Each Contracting Party, in compliance with the requirements of
this Convention, shall recognise and execute the following decisions adopted in
the territories of other Contracting Parties: (a) the decisions adopted by
institutions of justice on civil and family cases...”
Article 53: Request for authorisation of execution of a
decision
“1. The request for authorisation of execution of a
decision shall be filed with the competent court of the Contracting Party where
the decision is subject to be executed. It can also be filed with the court
which has decided on the case at first instance. That court shall forward the
request to the court competent to decide on the request...”
Article 54: The procedure for recognition and execution of
decisions
“1. The request for recognition and execution of
decisions envisaged by Article 51 shall be examined by the courts of the
Contracting Party in the territory of which the decision must be executed.
2. The court, examining the request for recognition
and authorisation of execution of a decision, shall limit itself to determining
that the requirements of this Convention have been observed. If the
requirements have been observed, the court decides to have the decision
executed...”
Article 55: Refusal to recognise and execute decisions
“The recognition of decisions ... and the authorisation of
their execution may be refused if: ... (c) there has been previously a final
decision adopted on the case in the territory of the Contracting Party, where
the decision must be recognised and executed, involving the same parties,
having the same subject-matter and on the same grounds...”
D. Enterprises and Private Entrepreneurs Bankruptcy
Act of the Republic of Armenia (in force from 18 June 1995 till 1 March 1997)
Section 17 empowered the court to declare a
debtor bankrupt.
Section 30 § 1 provided that the court shall
decide to put a bankrupt debtor legal entity on sale through auction. According
to sub-paragraph 4 of the same Section, the purchaser of the bankrupt legal
entity should not be liable for its debts.
Section 34 provided that a court, upon
conclusion of the court examination of a bankruptcy case, should declare the
debtor released from paying all outstanding debts and it should be forbidden
thereafter to institute court proceedings against the debtor seeking to recover
such debts.
E. Decree no. 576 of 15 November 1992 of the
Government of Armenia
According to Paragraph 16 of the Decree, which
lost its effect on 26 August 2004, in the event of termination of the
activities of a company in consequence of its liquidation or restructuring the
damage caused to an employee as a result of a professional injury was to be
compensated by the company’s legal successor and, in the event of the absence
of the latter, the social security authorities with funds allocated from the
State budget.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
The applicant complained about the failure by
the Armenian and Moldovan authorities to enforce the 1988 judgment and the
failure by the Armenian authorities to enforce the 2003 judgment, which were both
delivered in his favour. He relied on Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, which, in so far as relevant, provide:
Article 6
“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.”
A. Admissibility
1. The non-enforcement of the judgment of 15 January
1988
(a) Scope of the complaint
By the 1988 judgment the applicant was awarded three
lump sums of money as well as monthly payments for supplementary medical care
and extra dietary needs. However, the only issue raised by the applicant when
lodging this complaint and his later submissions was the non-payment since 1
January 1992 of the monthly sums for supplementary medical care and extra
dietary needs. Accordingly, the Court will examine this complaint only in
respect of the non-payment of the monthly sums of money.
(b) The complaint in respect of Armenia
The Armenian Government claimed that the
applicant had failed to exhaust the domestic remedies in respect of this
complaint since he had not instituted any proceedings before either the
Armenian or the Moldovan courts concerning the failure to enforce the 1988
judgment.
The applicant did not make any submissions in
this respect.
The Court considers that there is no need to
examine the Armenian Government’s objection of non-exhaustion since the present
complaint is, in any event, inadmissible for the following reasons.
In the present case, by a final court judgment
of 15 January 1988 the applicant was awarded monthly sums of money in relation to
his work-related injury to be paid by his former employer, the Yerevan Meat
Factory. However, on 2 June 1997, upon the conclusion of the bankruptcy
proceedings and the sale of the Urartu OJSC, a legal successor of the Yerevan
Meat Factory, the company was released from repayment of its debts, which
included the obligations undertaken before the applicant (see paragraph 17
above). It can therefore be concluded that as from 2 June 1997 there was no
longer an obligation under the Armenian law to pay the monthly payments to the
applicant as awarded by the 1988 judgment.
In this respect, the Court reiterates that, in
accordance with the generally recognised rules of international law, the
Convention only governs, for each Contracting Party, facts subsequent to its
entry into force with regard to that Party (see, e.g., Jovanović v. Croatia
(dec.), no. 59109/00, ECHR 2002-III).
The Court observes that the Convention and
Protocol No. 1 entered into force in respect of Armenia on 26 April 2002. Accordingly, at the time the Convention
entered into force in respect of Armenia, neither the Urartu OJSC nor the
Armenian authorities were obliged under the domestic law to make compensatory
payments to the applicant under the 1988 judgment. Accordingly, the Court is
not competent to examine the present complaint because it concerns the
applicant’s right to receive the payments in question and therefore refers to
events which had ended before the date of the entry into force of the
Convention in respect of Armenia.
Besides, in order to find out if the
responsibility of the Armenian authorities for the non-enforcement of the 1988
judgment could be engaged on the basis of Article 7 of the Moscow Convention
and Paragraph 16 of the Government Decree no. 576, it would be necessary to
establish whether declaring the Urartu OJSC bankrupt and selling it to another
person amounted to its de facto liquidation. However, the Court is
precluded from examining the bankruptcy proceedings in question since they were
terminated in 1997 and therefore fall outside the Court’s competence ratione
temporis.
It follows that this complaint is incompatible ratione temporis with the provisions of
the Convention, within the meaning of Article 35 § 3 of the Convention, and
must be rejected pursuant to Article 35 § 4.
(c) The complaint in respect of the Republic of Moldova
The Moldovan Government submitted that the
present complaint was incompatible ratione loci and ratione personae
in respect of the Republic of Moldova. In this respect they claimed that the
applicant’s work accident had taken place on the Armenian territory; the
judgment against the Yerevan Meat Factory had been taken by an Armenian court
and, therefore, was subject to execution by the Armenian authorities on its
territory.
The applicant submitted that the Moldovan Government
did not take any efficient actions for the enforcement of the 1988 judgment, though
it was aware of the fact that starting from January 1992 the debtor Urartu OSJC
had stopped making the payments to him.
The Court notes that the present case concerns
non-enforcement of a judgment of an Armenian court against a legal entity based
in Armenia (compare, Racu v. Moldova (dec.), no. 13136/07, 1 July 2008). The fact that the
applicant, as a beneficiary of the 1988 judgment, is a Moldovan national is not
sufficient for holding the Moldovan authorities liable in any way for its non-enforcement.
In this respect, it must be noted that the applicant failed to specify in what
particular manner as well as on what legal basis the Moldovan authorities were
obliged to act but had allegedly failed to do so. Based on the above, the Court
considers that the Moldovan authorities cannot be held responsible for the
failure to enforce the 1988 judgment.
It follows that this complaint is incompatible ratione
personae with the provisions of the Convention, within the meaning of
Article 35 § 3 of the Convention, and must be rejected pursuant to
Article 35 § 4.
2. Non-enforcement of the judgment of 27 March 2003
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Armenian Government submitted that the
refusal to grant the applicant’s request seeking recognition and execution of
the 2003 judgment did not violate the applicant’s rights under the Convention.
In particular, they claimed that the subject-matter of the 2003 judgment was
identical to that of the 1988 judgment and, accordingly, such refusal was lawful
as based on Article 55 (c) of the Minsk Convention and other domestic legal
norms. In this respect, the Armenian Government claimed that the
above-mentioned provision of the Minsk Convention was a manifestation of the
principle of res judicata whose conditions applied to the present case
as, before the 2003 judgment, there had already been a final judgment adopted
between the same parties on the same grounds and having the same subject
matter.
The applicant maintained that the subject matter
of the 1988 judgment and the 2003 judgment was different. In particular, by the
1988 judgment he was awarded monthly sums for medical care and extra nutrition only,
while, by the 2003 judgment, the Urartu OJSC was ordered to pay him 17,884 United States dollars for the costs of medicine, prosthetics, domestic services, resort
treatment, bed linen, a vehicle, its major repairs and fuel, and the costs of
masseur services.
2. The Court’s assessment
(a) Article 6 § 1 of the Convention
The Court reiterates that execution of a
judgment given by a court is an integral part of the “trial” for the purposes
of Article 6 (see Hornsby
v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997-II). Besides, where civil rights and
obligations are at stake, Article 6 is applicable to the execution of both
domestic and foreign final judgments (see McDonald v. France (dec.),
no.18648/04, 29 April 2008).
The Court further reiterates that judgments of
courts and tribunals should adequately state the reasons on which they are
based. Article 6 § 1 obliges courts to give reasons for their judgments,
but cannot be understood as requiring a detailed answer to every argument (see Hirvisaari
v. Finland, no. 49684/99, § 30, 27 September 2001). The extent to which
this duty to give reasons applies may vary according to the nature of the
decision and must be determined in the light of the circumstances of the case
(see Ruiz
Torija v. Spain and Hiro
Balani v. Spain, 9 December 1994, Series A nos. 303-A and
303-B, § 29 and § 27 respectively; and Fomin v. Moldova, no. 36755/06, § 24, 11 October 2011).
Turning to the circumstances of the present
case, the Court observes that, by a final decision of 27 March 2003, the
Ciocana District Court granted the applicant’s claim against the Urartu OSJC
awarding him a total of 17,884 United States dollars. Pursuant to the provisions
of the Minsk Convention, the 2003 judgment, upon an exequatur request, was
subject to recognition and execution by the Armenian authorities. Such request
was lodged by the applicant, via the MJM, with the MJA on 1 September 2003 (see
paragraph 34 above). On 4 March 2004 the Erebuni and Nubarashen District Court
of Yerevan granted the request. However, on 23 April 2004 the Civil Court of
Appeal re-examined the request and dismissed it. In doing so, it referred to
the 1988 judgment and quoted Article 55 (c) of the Minsk Convention, thus
implying that there had previously been a final judgment, namely the 1988
judgment, adopted between the same parties, on the same grounds and having the
same subject matter (see paragraph 38 above).
In this respect, the Court observes that, while
the principle on which the applicant’s request was dismissed is not, in itself,
unreasonable, it is the manner in which it was done by the Civil Court of
Appeal that the Court would like to draw its attention to. In particular, the
decision of the Civil Court of Appeal of 23 April 2004 contained only a formal quotation
of Article 55 of the Convention, while no reasons were given why it considered
that the 1988 and 2003 judgments had the same subject matter. The Court notes
that by the 2003 judgment the applicant was awarded costs of, inter alia,
domestic services, bed linen and the purchase of a vehicle, its major repairs
and fuel. It was therefore incumbent on the Civil Court of Appeal to state its reasons
for finding that those costs fell under the category of supplementary medical
care and extra dietary needs as awarded to the applicant by the 1988 judgment. Hence,
in the particular circumstances, the reasoning cannot be regarded as adequate.
Nor did the Court of Cassation attempt to remedy
that situation as it simply upheld the decision of the appellate court by
stating that the applicant’s appeal – in which the latter argued that the
subject matter of the two judgments was not the same – was unsubstantiated.
Based on the above, the Court concludes that the
manner in which the Civil Court of Appeal dismissed the applicant’s request for
recognition and execution of the 2003 judgment, namely by making a formal
reference to Article 55 (c) of the Minsk Convention and without giving any
reasons for finding that the 1988 and 2003 judgments had one and the same
subject matter, failed to comply with the requirements of a fair trial.
Accordingly, there was a violation of Article 6
§ 1 of the Convention.
(b) Article
1 of Protocol No. 1
In view of its conclusions under Article 6 of
the Convention above, the Court does not find it necessary to examine
separately the same complaint under Article 1 of Protocol No. 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6 of
the Convention and Article 1 of Protocol No. 1 that the judgment of 20 November
1973 had not been enforced and that the Moldovan authorities were responsible
for the non-enforcement of the 2003 judgment. He further complained under
Article 2 of the Convention that he was deprived of his right to life, in the
sense of normal life, and under Article 14 that he was discriminated against since
the reason for the non-enforcement of the judgments in his favour was his being
Russian by origin.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
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. Damage
The applicant claimed EUR 431,590 in respect of
pecuniary damage and EUR 1,000,000 in respect of non-pecuniary damage.
The Armenian Government submitted that the
applicant’s claims both for pecuniary and non-pecuniary damage were groundless
and must be rejected. Furthermore, as regards non-pecuniary damage, the
applicant had failed to show that there was any causal link between the
violation alleged and the damage claimed.
The Court observes that it has found a violation
of Article 6 § 1 of the Convention in respect of the Civil Court of Appeal’s
failure to give adequate reasons for its refusal to dismiss the applicant’s
request for recognition and execution of the 2003 judgment. However, it will
not speculate as to the outcome of the proceedings against the applicant, had
the courts given reasons for their decisions. It therefore makes no award in
respect of pecuniary damage. On the other hand, the Court considers that the applicant
has sustained non-pecuniary damage on account of the breach of the Convention
found in the present judgment. Ruling on an equitable basis, the Court awards
the applicant EUR 5,000.
B. Costs and
expenses
The applicant did not submit any claim under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares unanimously the complaint in
respect of the Republic of Armenia concerning the non-enforcement of the 2003
judgment admissible and by majority the remainder of the application
inadmissible;
2. Holds by five votes to two that there has
been a violation of Article 6 § 1 of the Convention;
3. Holds unanimously that there is no need to
examine separately under Article 1 of Protocol No. 1 the complaint concerning
the non-enforcement of the 2003 judgment;
4. Holds by five votes to two
(a) that the Republic of Armenia 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 5,000
(five thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Moldovan lei 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
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses by five votes to two the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Gyulumyan,
Ziemele, López Guerra and Tsotsoria are annexed to this judgment.
J.C.M.
S.Q.
JOINT DISSENTING OPINION OF JUDGES GYULUMYAN AND LÓPEZ GUERRA
1. We do not agree with the
Chamber’s conclusions concerning the violation of Article 6 § 1 of the
Convention. When, upon an exequatur request, the 2003 judgment of the
Ciocana District Court of Chisinau was subject to recognition and execution by
the Armenian authorities, the request was examined and answered at three judicial
levels. In those proceedings, the Civil Court of Appeal of Armenia, overturning a previous pronouncement of the Erebani and Nabarashen District Court, decided
on 23 April 2004 to dismiss the applicant’s request. The reason given was that
the request dealt with matters subject to the res judicata principle,
implying (as expressed in paragraph 68 of the present judgment) that “there had
previously been a final judgment, namely the 1988 judgment, adopted between the
same parties, on the same grounds and having the same subject matter”. The
Civil Court of Appeal’s decision was upheld by the Armenian Court of Cassation.
2. In view of these circumstances
we do not find that the Armenian authorities violated Article 6 § 1 of the
Convention with respect to the due execution of the 2003 judgment of the Chisinau Court. In response to a petition for exequatur, on three different occasions
the Armenian courts examined and adjudicated the applicant’s claims based on
their appreciation of the facts of the case and their interpretation of the
applicable law, both national and international. In their examination of the
facts of the case, both the Court of Appeal and the Court of Cassation found
that the Armenian court judgment of 1988 and the Moldovan court judgment of
2003 had dealt with the same subject matter (i.e., compensation due to the
applicant for supplementary medical care and other costs derived from work
injuries), basing their rulings on Article 55 (c) of the Minsk Convention,
which excludes national authorities from recognising and enforcing the
decisions of foreign courts in cases of res judicata. The Armenian
courts stated the grounds for their judgments and the norms they were applying
in a way which cannot be considered either arbitrary or unfounded. This is
further reinforced by the fact that the company deemed responsible for
compensation in the 1988 judgment had been declared bankrupt and sold to a
third party, which was judicially ruled not to be liable for the company’s
debt.
3. The applicant disagrees with
the findings of the Armenian Courts of Appeal and Cassation. But his
disagreement, based on a different interpretation of the facts, is not a
sufficient reason to review the factual and legal assessment of the case
performed by the Armenian courts, as long as such assessment (as in the present
case) is reasonable and based on the existing law. Taking into account the fact
that the Armenian courts complied with all the procedural guarantees of a due
process of law (a fact that the applicant does not deny), Article 6 § 1 of the
Convention does not provide for our Court to deal with errors of fact or law
allegedly committed by the national courts in reaching their conclusions.
JOINT DISSENTING OPINION OF JUDGES ZIEMELE AND TSOTSORIA
1. We voted to find a violation of Article 6 and
against the inadmissibility of the remainder of the application, and against
dismissal of the applicant’s claim for just satisfaction. We are able to follow
the majority’s reasoning in finding a violation of Article 6 in this case, but
consider that this does not entirely cover the problem raised by the case as a
whole.
2. In the first place, the applicant had in his
favour a final judgment of the District Court of Yerevan from 1988, recognising
his right to a number of lump sum payments and also to monthly payments from
the Meat Factory arising from the work-related injury sustained by him there
which was the basis for his subsequent disability. The factory had made
payments until 1992. In 1997 the factory was declared bankrupt and the debtor
company was released from the payment of any debts, in accordance with section
34 of the Bankruptcy Act. We note that the Government Decree of 1992 provided
that in the event of a company’s liquidation, the legal successor is to pay the
debts; where there is no successor, the State social authorities are to take
over payments. This Decree was in force until August 2004. Furthermore, Armenia and Moldova were parties to the Moscow Convention, Article 7 of which provides: “In the
event of liquidation of the enterprise responsible for damage caused to an
employee and in the absence of a legal successor, the Contracting Party on
whose territory the enterprise was liquidated shall guarantee compensation for
damage to such employees pursuant to domestic law.”
3. In 2001 the applicant, acting through the
Moldovan Ministry of Justice and with reference to the Moscow Convention,
requested the Armenian authorities to enforce the 1988 judgment. Following an
exchange of correspondence, in 2002 the Armenian Ministry of Justice informed
the Moldovan Ministry of Justice about the Meat Factory’s bankruptcy and the
absence of a legal successor. It should be noted that this reply was sent to Moldova at a time when the 1992 Government Order was still in force. After several years of
correspondence between the applicant and various Armenian authorities, in 2006
the Armenian Ministry of Labour announced that the applicant could have applied
to the social authorities in order to receive funds from the State budget, as
provided for in the 1992 Government Order. Since he had failed to do so, he
should now complain about his situation to the domestic courts.
4. The Chamber considers that since the bankruptcy
proceedings were terminated in 1997 the applicant’s complaint about
non-enforcement of the 1988 judgment falls outside the Court’s jurisdiction ratione
temporis. We disagree with this assessment. Non-enforcement of a judgment
is a continuous situation unless the judgment is annulled or otherwise changed
by relevant courts (see Sabin Popescu v. Romania, no. 48102/99, § 54,
2 March 2004). It appears that this is not the case here, and nor can the
decision on the company’s bankruptcy be considered such an annulment, since
Armenia was under an obligation, both in terms of domestic law and the Moscow
Convention, to ensure that damages incurred on its territory to persons
employed therein were compensated. The Chamber makes a doubtful distinction
between liquidation and bankruptcy in this case. Even assuming that such a
distinction could be made, the object and purpose of the Moscow Convention
should have been assessed properly by the Armenian authorities. In 2001 the
Armenian Ministry of Justice should already have known to which authority the
applicant’s request was to be forwarded, or, if they considered that the
applicant should have brought further proceedings before the Armenian courts,
they should have informed him accordingly. It was only in 2006 that the
Armenian authorities stated that it was too late for the applicant to receive
funds from the social authorities. This reply does not make much sense, as the
applicant had been in touch with the authorities from 2001.
5. The Chamber is correct in noting in paragraph 57
that we cannot determine the proper status of the liquidation or bankruptcy
proceedings in respect of the Factory. At the same time, the Court has always
assessed the actions of the State in non-enforcement proceedings, including the
obligation to have proper and clear legislation enabling the enforcement of
judgments. We consider that the execution of the 1988 judgment was highly
problematic and the difficulties were imputable to Armenia. A major issue also
arises concerning Armenia’s compliance with its international obligations under
the Moscow Convention. It would appear that the applicant’s problems persist,
and that the proceedings leading to the adoption of the 2003 judgment have not
helped the matter, if indeed they are relevant at all to the 1988 judgment in
respect of which the Chamber has found a violation of Article 6; this remains
unclear. For all these reasons we consider that there was also a violation of
Article 6 with regard to non-execution of the 1988 judgment.
