CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 juin 2004

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page-break-after:avoid } .s391DB599 { width:218.01pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FOURTH SECTION     CASE OF LUNTRE AND OTHERS v. MOLDOVA     (Applications 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)     JUDGMENT     STRASBOURG     15 June 2004       FINAL     15/09/2004         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 Luntre and others and others v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   M. Pellonpää ,   Mr   J. Casadevall ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mrs   E. Fura-Sandström ,   Ms   L. Mijović, judges , and Mr   M. O’Boyle , Section Registrar , Having deliberated in private on 25 May 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in thirteen applications (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) 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 fifteen Moldovan nationals, Mr   Gheorghe Luntre, Ms   Nina Voit, Mr   Pavel Maloman, Mr   Dumitru Tcacenco, Mr   Mihail Zverev, Ms   Lidia Abramov, Ms   Eudochia Volcov, Ms   Ianina Atnealov, Ms   Nina Ceaica, Mr   Dumitru Grişin, Ms   Tatiana Grişin, Mr   Pavel Epifanov, Ms   Nadejda Cleauşev, Ms   Ecaterina Bobîlev and Mr   Ivan Prozor (“the applicants”), on 31 October 2001, 25 February 2002, 25 February 2002, 25   February 2002, 25 February 2002, 11 March 2002, 30 October 2001, 25   May 2002, 25 May 2002, 25 February 2002, 25 February 2002, 25   February 2002, 25 February 2002, 25 February 2002 and 25 February 2002 respectively. 2.     The applicants were represented by Mr   Vitalie Iordachi, acting on behalf of the “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr   Vitalie Pârlog. 3.     The applicants complained under Article   6 §   1 of the Convention that, because of the non-enforcement of the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000, their right to have their civil rights determined by a court had been violated and that they had been unable to enjoy their possessions, and thus their right to protection of property under Article   1 of Protocol No.   1 to the Convention was violated. 4.     The applications were allocated to the Fourth Section. On 4   February   2003 a Chamber of that Section decided to communicate the applications to the Government. Under the provisions of Article   29 §   3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5.     On 25 Many 2004 the Chamber decided to join the applications in accordance with Rule 42 (1) of the Rules of the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1932, 1920, 1928, 1919, 1925, 1927, 1923, 1969, 1930, 1919, 1923, 1929, 1928, 1923 and 1922 respectively. 7.     On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank have to be index-linked. According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government. 8.     In 1999-2001 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation. 9.     By a final judgment of 17 September 2000 the court awarded Mr   Gheorghe Luntre compensation of MDL 2,936 [1] . 10.     By a final judgment of 10 July 2000 the court awarded Ms   Nina Voit compensation of MDL 2,934 [2] . 11.     By a final judgment of 10 May 2000 the court awarded Mr   Pavel Maloman compensation of MDL 733 [3] . 12.     By a final judgment of 25 August 2000 the court awarded Mr   Dumitru Tcacenco compensation of MDL 734.50 [4] . 13.     By a final judgment of 10 May 2000 the court awarded Mr   Mihail Zverev compensation of MDL 733 [5] . 14.     By a final judgment of 3 May 2001 the court awarded Ms   Lidia Abramov compensation of MDL 2,934 [6] . 15.     By a final judgment of 15 March 2001 the court awarded Ms   Eudochia Volcov compensation of MDL 3,667.50 [7] . 16.     By a final judgment of 30 November 2000 the court awarded Ms   Ianina Atnealov compensation of MDL 1,468 [8] . 17.     By a final judgment of 30 November 2000 the court awarded Ms   Nina Ceaica compensation of MDL 734 [9] . 18.     By a final judgment of 18 October 1999 the court awarded Mr   Dumitru Grişin compensation of MDL 1,446.76 [10] . 19.     By a final judgment of 18 October 1999 the court awarded Ms   Tatiana Grişin compensation of MDL 1,301.76 [11] . 20.     By a final judgment of 14 December 2000 the court awarded Mr   Pavel Epifanov compensation of MDL 2,130.69 [12] . 21.     By a final judgment of 30 November 2000 the court awarded Ms   Nadejda Cleauşev compensation of MDL 733.50 [13] . 22.     By a final judgment of 10 May 2000 the court awarded Ms   Ecaterina Bobîlev compensation of MDL 733 [14] . 23.     By a final judgment of 10 May 2000 the court awarded Mr   Ivan Prozor compensation of MDL 733 [15] . 24.     On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget. 25.     On 22-30 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance. II.   RELEVANT DOMESTIC LAW 26.     The relevant provisions of the Code of Civil Procedure, in force at the material time, stated:   Article   336. The decisions of the courts and other authorities susceptible to enforcement The following are the acts which have to be enforced in accordance with the provisions of the present Code: 1) Civil law judgments, orders and decisions adopted by the courts... Article   338. The issuance of the enforcement warrant The enforcement warrant is issued by the court to the creditor, after the judgment has become final, except for cases of immediate enforcement, when the enforcement warrant is issued immediately after the delivery of the judgment. Article   343. The request to start the enforcement procedure The bailiff starts the enforcement procedure at the request of the persons enumerated in Article   5 of the present Code. In cases provided for in the second paragraph of this article, the bailiff starts the enforcement procedure following the judge’s order. Article   349. The supervision of enforcement of judgments The supervision of the correct and prompt enforcement of judgments is conducted by the Department of Judgment Enforcement of the Ministry of Justice. THE LAW 27.     The applicants complained that their right to have their civil rights determined by a court had been violated by the authorities’ failure to enforce the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000. They relied on Article   6 §   1 of the Convention, which 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 ... by a tribunal ...” 28.     The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus that their right to protection of property under Article   1 of Protocol No. 1 to the Convention had been violated. 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 29.     The Court considers that the applicants’ complaints under Articles 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 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE   6 §   1 OF THE CONVENTION 30.     Under Article   6 §   1 of the Convention, the applicants complained about the failure of the authorities to execute the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000. 31.     The Government did not deny that the failure to enforce the judgments constituted a breach of Article   6 §   1 of the Convention. 32.     The Court reiterates that Article   6 §   1 secures to everyone the right to have any claim relating to his or her 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. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article   6 §   1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article   6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article   6 (see the Hornsby v.   Greece judgment of 19 March 1997, Reports 1997-II, p. 510, §   40). 33.     It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article   6 §   1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, §   74, ECHR 1999-V). In the instant case, the applicants should not have been prevented from benefiting from the success of the litigation, which concerned the payment of compensation. 34.     The Court notes that the judgments favourable to the applicants remained unenforced for periods varying between forty-two and twenty-four months (until after the cases had been communicated to the Government by the Court, on 22-30 April 2003). 35.     By failing for years to take the necessary measures to comply with the final judgments in the instant case, the Moldovan authorities deprived the provisions of Article   6 §   1 of the Convention of all useful effect. 36.     There has accordingly been a violation of Article   6 §   1 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE   1 OF PROTOCOL No. 1 TO THE CONVENTION 37.     The applicants further complained that because of the non-enforcement of the judgments in their favour they were unable to enjoy their possessions, and thus their right to protection of property under Article   1 of Protocol No.   1 to the Convention was violated. 38.     The Government did not deny that the failure to enforce the judgments constituted a breach of Article   1 of Protocol No. 1 to the Convention. 39.     The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article   1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see the Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no.   301-B, §   59). 40.     The Court notes that the applicants have enforceable claims deriving from the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25   August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000. It follows that the impossibility for the applicants to obtain the execution of the judgments until 22-30 April 2003, constituted an interference with their right to peaceful enjoyment of their possessions, as set out in the first sentence of the first paragraph of Article   1 of Protocol No.   1 to the Convention. 41.     By failing to comply with the final judgments the national authorities prevented the applicants from having their compensation paid and from enjoying the possession of their money. The Government have not advanced any justification for this interference and the Court considers that lack of funds cannot justify such an omission (see, mutatis mutandis, Ambruosi v.   Italy , no. 31227/96, §§ 28-34, 19   October   2000). 42.     There has accordingly been a violation of Article   1 of Protocol No.   1 to the Convention. IV.     APPLICATION OF ARTICLE   41 OF THE CONVENTION 43.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Pecuniary   damage 44.     The applicants claimed the following amounts for the pecuniary damage suffered as a result of the failure of the authorities to enforce the judgments: Mr   Gheorghe Luntre – EUR   101, Ms   Nina Voit – EUR   105, Mr   Pavel Maloman – EUR   25, Mr   Dumitru Tcacenco – EUR   25, Mr   Mihail Zverev – EUR   25, Ms   Lidia Abramov – EUR   63, Ms   Eudochia Volcov – EUR   102, Ms   Ianina Atnealov – EUR   35, Ms   Nina Ceaica – EUR   23, Mr   Dumitru Grişin – EUR   69, Ms   Tatiana Grişin – EUR   64, Mr   Pavel Epifanov – EUR   64, Ms   Nadejda Cleauşev – EUR   23, Ms   Ecaterina Bobîlev – EUR   25 and Mr   Ivan Prozor – EUR   36. 45.     The Government considered excessive the amounts claimed and left the appreciation of the pecuniary damage at the Court’s discretion. 46.     The Court considers that the applicants must have suffered pecuniary damage as a result of the non-execution of the judgments of 17 September 2000, 10 July 2000, 10 May 2000, 25 August 2000, 10 May 2000, 3 May 2001, 15 March 2001, 30 November 2000, 30 November 2000, 18 October 1999, 18 October 1999, 14 December 2000, 30 November 2000, 10 May 2000 and 10 May 2000 respectively. The Court awards Mr   Gheorghe Luntre – EUR   101, Ms   Nina Voit – EUR   105, Mr   Pavel Maloman – EUR   25, Mr   Dumitru Tcacenco – EUR   25, Mr   Mihail Zverev – EUR   25, Ms   Lidia Abramov – EUR   63, Ms   Eudochia Volcov – EUR   102, Ms   Ianina Atnealov – EUR   35, Ms   Nina Ceaica – EUR   23, Mr   Dumitru Grişin – EUR   69, Ms   Tatiana Grişin – EUR   64, Mr   Pavel Epifanov – EUR   64, Ms   Nadejda Cleauşev – EUR   23, Ms   Ecaterina Bobîlev – EUR   25 and Mr   Ivan Prozor – EUR   36. B.     Non-pecuniary damage 47.     The applicants claimed the following amounts for the non-pecuniary damage suffered as a result of the failure of the authorities to enforce the judgments: Mr   Gheorghe Luntre – EUR   35,000, Ms   Nina Voit – EUR   30,000, Mr   Pavel Maloman – EUR   30,000, Mr   Dumitru Tcacenco – EUR   30,000, Mr   Mihail Zverev – EUR   30,000, Ms   Lidia Abramov – EUR   35,000, Ms   Eudochia Volcov – EUR   30,000, Ms   Ianina Atnealov – EUR   25,000, Ms   Nina Ceaica – EUR   25,000, Mr   Dumitru Grişin – EUR   25,000, Ms   Tatiana Grişin – EUR   25,000, Mr   Pavel Epifanov – EUR   30,000, Ms   Nadejda Cleauşev – EUR   30,000, Ms   Ecaterina Bobîlev – EUR   30,000 and Mr   Ivan Prozor – EUR   30,000. 48.     The Government disagreed with the amounts claimed by the applicants, arguing that they were excessive in light of the case-law of the Court. They stated that in some cases the mere fact of finding a violation was considered to be just satisfaction. The Government further cited the case of Burdov v. Russia , no.   59498/00, ECHR 2002-III, where the applicant was awarded EUR   3,000 for non-pecuniary damage. 49.     The Court considers that the applicants must have been caused a certain amount of stress and frustration as a result of the non-enforcement of the judgments, the more so given their advanced age and the fact that their only income was the state pension. In making awards for the non-pecuniary damage suffered by each applicant, the Court takes into consideration such factors as the applicant’s age, personal income, the length of the enforcement proceedings and other relevant aspects. It awards Mr   Gheorghe Luntre – EUR   1,000, Ms   Nina Voit – EUR   1,000, Mr   Pavel Maloman – EUR   1,000, Mr   Dumitru Tcacenco – EUR   1,000, Mr   Mihail Zverev – EUR   1,00, Ms   Lidia Abramov – EUR   1,000, Ms   Eudochia Volcov – EUR   500, Ms   Ianina Atnealov – EUR   700, Ms   Nina Ceaica – EUR   900, Mr   Dumitru Grişin – EUR   1,000, Ms   Tatiana Grişin – EUR   1,000, Mr   Pavel Epifanov – EUR   900, Ms   Nadejda Cleauşev – EUR   900, Ms   Ecaterina Bobîlev – EUR   1,000 and Mr   Ivan Prozor – EUR   1,000. C.   Costs and expenses 50.     Mr   Gheorghe Luntre, Mr   Pavel Maloman, Mr   Mihail Zverev and Mr   Ivan Prozor claimed EUR   1,000 each for representation fees. They relied on contracts concluded with their lawyer, according to which the fees would be paid only in case of success. 51.     Ms   Nina Voit, Mr   Dumitru Tcacenco, Ms   Lidia Abramov, Ms   Eudochia Volcov, Mr   Pavel Epifanov, Ms   Nadejda Cleauşev and Ms   Ecaterina Bobîlev claimed EUR   50 each, while Ms   Ianina Atnealov, Ms   Nina Ceaica, Mr   Dumitru Grişin and Ms   Tatiana Grişin claimed EUR   25 each for secretarial expenses incurred before the Court. 52.     The Government did not agree with the amounts claimed, stating that they were excessive and that the applicants had failed to prove the alleged representation expenses. 53.     The Court recalls that in order for costs and expenses to be included in an award under Article   41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, §   62, ECHR 1999-VIII). 54.     According to Rule 60 §   2 of the Rules of Court, itemised particulars of all claims made, are to be submitted, failing which the Chamber may reject the claim in whole or in part. 55.     The Court may take as a basis for its assessment such elements as the number of hours of work together with the hourly rate sought.   However, since the applicants did not submit such information, the Court decides not to make any award for costs and expenses (see Amihalachioaie v. Moldova, no. 60115/00, §   48). D.     Default interest 56.     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 1.     Declares the applications admissible;   2.     Holds that there has been a violation of Article   6 §   1 of the Convention;   3.     Holds that there has been a violation of Article   1 of Protocol No. 1 to the Convention;   4.     Holds (a)     that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article   44   §   2 of the Convention: - to Mr   Gheorghe Luntre – EUR   101 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Ms   Nina Voit – EUR   105 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Mr   Pavel Maloman – EUR   25 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Mr   Dumitru Tcacenco – EUR   25 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Mr   Mihail Zverev – EUR   25 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Ms   Lidia Abramov – EUR   63 for pecuniary damage and EUR   800 for non-pecuniary damage, - to Ms   Eudochia Volcov – EUR   102 for pecuniary damage and EUR   800 for non-pecuniary damage, - to Ms   Ianina Atnealov – EUR   35 for pecuniary damage and EUR   700 for non-pecuniary damage, - to Ms   Nina Ceaica – EUR   23 for pecuniary damage and EUR   900 for non-pecuniary damage, - to Mr   Dumitru Grişin – EUR   69 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Ms   Tatiana Grişin – EUR   64 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Mr   Pavel Epifanov – EUR   64 for pecuniary damage and EUR   900 for non-pecuniary damage, - to Ms   Nadejda Cleauşev – EUR   23 for pecuniary damage and EUR   900 for non-pecuniary damage, - to Ms   Ecaterina Bobîlev – EUR   25 for pecuniary damage and EUR   1,000 for non-pecuniary damage, - to Mr   Ivan Prozor – EUR   36 for pecuniary damage and EUR   1,000 for non-pecuniary damage; (b)     that the above amounts shall 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[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 15 June 2004, pursuant to Rule   77 §§   2 and   3 of the Rules of Court. Michael O’Boyle   Nicolas Bratza   Registrar   President   [1] EUR   275 [2] EUR   248 [3] EUR   65 [4] EUR   66 [5] EUR   65 [6] EUR   254 [7] EUR   313 [8] EUR   138 [9] EUR   69 [10] EUR   122 [11] EUR   109 [12] EUR   197 [13] EUR   69 [14] EUR   65 [15] EUR   65