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FOURTH
SECTION
CASE OF RUSU v. MOLDOVA
(Application
no. 3479/04)
JUDGMENT
STRASBOURG
15
January 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Rusu v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq
Traja,
Stanislav Pavlovschi,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3479/04) 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 a Moldovan national, Mr Valeriu Rusu (“the
applicant”), on 11 December 2003.
- The
Moldovan Government (“the Government”) were represented
by their Agent at the time, Mr Vitalie Pârlog.
- The
applicant complained that
the failure to enforce a final judgment in his favour had infringed
his right to have his civil rights determined by a court within a
reasonable time, as guaranteed by Article 6 of the Convention, and
his right to the peaceful enjoyment of his possessions, as guaranteed
by Article 1 of Protocol No. 1 to the Convention.
- The
application was allocated to the Fourth Section of the Court. On
13 February 2006 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
- The
applicant and the Government each filed observations on
admissibility, merits and just satisfaction.
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Edineţ.
- In
1949 the Soviet authorities implemented their collectivisation policy
and the applicant's grandparents were deprived of their land.
- On
11 April 2002 the applicant's father sought from the Feteşti
Local Council (“the Local Council”) the allocation of a
plot of land, as provided for by the Land Code. His request having
been refused, on an unspecified date in April 2002 he brought an
action against the Local Council.
- On
25 April 2002 the Edineţ District
Court ruled in favour of the applicant's father and ordered the Local
Council to allocate him a plot of land measuring 1.09 hectares. The
judgment was not challenged and after fifteen days it became final
and enforceable.
- On
20 May 2002, on behalf of his father, the applicant wrote a letter to
the Feteşti Local Council, seeking compliance with the judgment
of 25 April 2002. On 28 May 2002 the Local Council replied that
the judgment could not be complied with due to lack of available
land.
- On
22 May 2002, on behalf of his father, the applicant wrote a letter to
the Edineţ District Court and
complained about the Council's non-compliance with the judgment of 25
April 2002. The applicant alleged that the District Court had sent
the letter to the bailiff, who had not replied.
- On
4 February 2003 the applicant's father died. On 8 May 2003 a public
notary issued an inheritance certificate in respect of the applicant,
according to which he had inherited his father's plot of land, as
provided for by the judgment of the Edineţ
District Court.
- On
8 May 2003 the applicant lodged a request with the Local Council
seeking the allocation of land measuring 1.09 hectares, in accordance
with the judgment of 25 April 2002 and the inheritance certificate.
The Local Council did not reply.
- On
an unspecified date in 2003 the applicant initiated proceedings
against the Local Council, seeking compensation for the value of the
crops he could have obtained from cultivating his land in 2002.
- On
11 August 2003 the Edineţ
District Court ruled in favour of the applicant and ordered the Local
Council to pay him compensation in the amount of 5,000 Moldovan Lei
(MDL) (324.12 euros (EUR) at the time). The Local Council lodged an
appeal against the judgment.
- On
6 November 2003 the Bălţi Court of Appeal upheld the
appeal, quashed the judgment of 11 August 2003 and dismissed the
applicant's action. The Court of Appeal found that since the
applicant's father had died and the applicant had inherited the land
only in May 2003, the latter could not seek compensation for the year
2002. The applicant lodged an appeal in cassation.
- On
13 April 2005 the Supreme Court of Justice gave
a final judgment and dismissed the applicant's
action.
- The
judgment of 25 April 2002 has not been 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)).
- In
addition, the relevant provisions of the Land Code read as follows:
Article 20. Documents which confirm the
rights of owners of land
“The documents which confirm the rights of owners
of land are the following: the title deed of ownership of a plot of
land (titlul de autentificare a dreptului
deţinătorului de teren), issued by the local
administrative authorities ..., the inheritance certificate ... as
well as other [documents]...”
Article 21. Inability to use the land
until the delimitation of its borders
“The owners of land do not have the right to use
it ... until the Local Council ... has delimited its borders...”
THE LAW
- The
applicant complained that the failure to enforce the final judgment
of 25 April 2002 had infringed his rights as guaranteed by Article 6
§ 1 of the Convention. The relevant part of Article 6 reads
as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair hearing ... within a
reasonable time by a tribunal ....”
- He
also complained that the failure to enforce the judgment had also
infringed his rights under Article 1 of Protocol No. 1 to the
Convention. That Article 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
- In
their observations on the admissibility and merits of the case, the
Government submitted that although the applicant had been provided
with a power of attorney to represent his father before the domestic
courts, neither the applicant nor his father had requested to be
issued with a warrant of execution and to initiate enforcement
proceedings, as provided for by Articles 338 and 343 of the Code
of Civil Procedure. They requested the Court to reject the
application on the ground that the non-compliance with the judgment
of 25 April 2002 was due to the applicant's and his father's conduct.
The
Government also argued that in view of the fact that neither the
applicant nor his father had been issued with a title deed of
ownership over the land, as provided for by the Land Code (see
Relevant law part above) there had been no violation of the
provisions of the Convention.
- The
Court reiterates that “a person who
has obtained an enforceable judgment against the State as a result of
successful litigation cannot be required to resort to enforcement
proceedings in order to have it executed” (see Koltsov v.
Russia, no. 41304/02, § 16, 24 February 2005; Petrushko
v. Russia, no. 36494/02, § 18, 24 February 2005; and
Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).
It therefore concludes that the enforcement proceedings should have
been set in motion immediately after the judgment of 25 April 2002
became final.
As to
the second objection raised by the Government, the Court considers
that neither the applicant nor his father could have obtained a title
deed in respect of their rights over a plot of land which had not yet
been allocated to them as provided by the judgment of 25 April 2002.
A title deed should have been issued to
conclude the enforcement proceedings. A
similar situation in which the State authorities had to issue an
applicant with a document so that the latter obtained the full
enjoyment of his or her possessions has already been found by the
Court in Lozan and Others v. Moldova (no. 20567/02, §§
16, 24 and 38, 10 October 2006) to be in breach of the provisions of
the Convention. Accordingly, this objection should also be dismissed.
- The
Court considers that the applicant's 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 4 above), the Court will immediately
consider the merits of these complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF
ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the non-compliance with the judgment of 25
April 2002 in his favour had infringed his rights under Article 6 §
1 and Article 1 of Protocol No. 1 to the Convention.
- The
Government reiterated their view that the non-compliance with the
judgment of 25 April 2002 was due to the applicant's and his father's
conduct.
- The
Court observes that the general principles which apply in cases of
this type are set out in Prodan (cited above, §§
52-53 and 59).
- In
considering the length of the period of non-compliance with the final
judgment in this case, the Court notes that the domestic courts had
ordered the allocation of a plot of land to the applicant's father
(see paragraph 9 above). It also observes that the applicant had
acted as his father's representative before the domestic authorities
and subsequently inherited the plot of land, as provided for by the
judgment of the Edineţ District Court
(see paragraph 12 above).
The
Court reiterates that enforcement proceedings are the second stage of
civil proceedings and that the civil right asserted does not actually
become effective until enforcement of the final judgment given. In so
far as the applicant has manifested his intention to continue the
proceedings as the heir of a “beneficiary” of a judgment
debt, he can complain of the entire length of the enforcement
proceedings, and therefore the period of non-compliance with the
final judgment of 25 April 2002 has to be calculated from that date
(see, mutatis mutandis, Cocchiarella v. Italy
[GC], no. 64886/01, §§ 88 and 113, ECHR 2006 ...).
Accordingly, the period of non-enforcement amounts to five years and
seven months.
- The
issues raised under Article 6 § 1 and Article 1 of Protocol
No. 1 to the Convention are identical to those found to give
rise to violations of those Articles in Prodan (cited above,
§§ 56 and 62) and Sîrbu and Others v. Moldova
(nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01,
§§ 27 and 33, 15 June 2004). There is no reason to depart
from those findings in the present case.
- There
has, accordingly, been a violation of Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary damage
- Without submitting any evidence the applicant sought
MDL 21,000 (EUR 1,237), representing the value of a plot of land
measuring 1.09 hectares. In addition, he claimed MDL 62,575.93 (EUR
3,686) for the value of the crops he could have obtained from
cultivating the land which the authorities had failed to allocate to
him. He contended that he could have obtained an income of MDL 5,000
per year plus annual interest.
- The
Government contested the amounts sought by the applicant. According
to a certificate issued by the National Land and Cadastre Agency
(Agenţia Relaţii Funciare şi
Cadastru) the value of the applicant's land was
MDL 20,513.20 (EUR 1,217). They further submitted that the claim
regarding pecuniary damage for the value of the crops he could have
obtained and its method of calculation were totally unsubstantiated.
- Concerning
the compensation sought by the applicant, the Court reiterates that
it has found violations of Article 6 § 1 of the Convention and
of Article 1 of Protocol No. 1 to the Convention on account of the
non enforcement of the final judgment ordering the authorities
to return a plot of land to the applicant. Therefore, only pecuniary
damage having a causal link with this violation can be taken into
account.
- In
assessing the value of the disputed plot of land the
Court notes that the amount requested by the applicant has no basis
in fact, whereas the Government have submitted a certificate from a
competent authority showing the value of the land. The Court
therefore awards the applicant EUR 1,217.
- As
to the value of the crops he could have obtained from cultivating his
land, the Court notes that the applicant's method of calculation is
substantially different that the method employed in Prodan
(cited above, §§ 73 and 74) and that he had not
submitted any evidence in support of his claims. Furthermore, the
calculation provided by the applicant cannot be accepted by the Court
because it does not constitute a realistic determination of the value
of each crop which could have been grown by him, but represents the
alleged value of an annual crop plus interest.
In
the absence of any evidence, the Court will not speculate as to the
value of the annual crop which could had been grown by the applicant
between 2002 and 2007 and, therefore, will not make an award under
this head (see Dragne and Others v. Romania (just
satisfaction), no. 78047/01, § 18, 16 November 2006).
B. Non-pecuniary Damage
- The
applicant claimed MDL 250,725 (EUR 14,770) for non-pecuniary damage
suffered as a result of the non-enforcement of the final judgment in
his favour.
- The
Government disagreed with the amount claimed by the applicant.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the non-enforcement
of the judgment in his favour. It awards the applicant the total sum
of EUR 1,800 for non-pecuniary damage.
C. Costs and expenses
- The
applicant claimed EUR 30 in respect of costs and expenses incurred
before the Court. He submitted copies of receipts for the letters
sent to the Court and for the court fees paid during the domestic
proceedings.
- The
Government disagreed with the amount claimed by the applicant.
- The
Court reiterates 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 are reasonable as to quantum
(see, for example, Amihalachioaie v. Moldova, no. 60115/00, §
47, ECHR 2004 III).
- In the present case, regard being had to the evidence
submitted by the applicant, the Court awards him EUR 30 in
respect of costs and expenses.
D. 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State 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, the
following amounts, 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:
(i) EUR
1,217 (one thousand two hundred and seventeen euros) in respect of
pecuniary damage;
(ii) EUR
1,800 (one thousand eight hundred euros) in respect of non-pecuniary
damage;
(iii) EUR
30 (thirty euros) in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
