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FOURTH
SECTION
CASE OF DECEV v. MOLDOVA
(Application
no. 7365/05)
JUDGMENT
STRASBOURG
24 February 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Decev v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 3 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7365/05) 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 Leonid Decev (“the
applicant”), on 4 February 2005.
- The
applicant was represented by Mr Ştefan Urîtu, a lawyer
practising in Chişinău. The Moldovan Government (“the
Government”) were represented by their Agent, Mr Vladimir
Grosu.
- On
20 November 2007 the Acting President of the Fourth Section decided
to give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Comrat.
- On
29 November 2006, during a press conference, the Governor of the
Gagauzia region of Moldova, Mr G.T., made a statement which the
applicant considered defamatory. He instituted civil defamation
proceedings against G.T. which ended on 19 December 2001 with a final
judgment of the Court of Appeal in his favour. The court found the
statement defamatory and ordered G.T. to retract it and to pay the
applicant non-pecuniary damages of 122 euros (EUR).
- The applicant obtained an enforcement warrant and, on 1
March 2002, requested that the judgment be enforced, in accordance
with the procedure prescribed by the Code of Civil Procedure (see
paragraph 10 below). However, in May 2002, a bailiff refused to
enforce the judgment on the ground that the defendant did not have a
domicile in Comrat (the main town in Gagauzia region). It does not
appear that the enforcement was formally discontinued by a court
decision, in accordance with the provisions of the Code of Civil
Procedure (see paragraph 10 below).
- In
the meantime, defendant G.T. ended his mandate as Governor of the
Gagauzia region and, in February 2001, was elected MP in the Moldovan
Parliament on the Communist Party ticket – this is the party in
power to date. In 2002 Mr G.T. was re-elected Governor of the
Gagauzia region also as a representative of the Communist Party and
simultaneously appointed to the central Government of Moldova. He
occupied the above positions until 2006 and 2007 respectively and had
offices both in the building of the Government in Chişinău
and in Comrat.
- According
to the applicant, he complained on several occasions to the competent
authorities about the non-enforcement of the final judgment
favourable to him, however to no avail. He sent the Court a copy of a
letter dated 24 January 2005 he had written to the Minister of
Justice. The Minister of Justice forwarded his letter to the Comrat
Office of Enforcement of Judgment but no action followed. Further
correspondence took place in 2008, but also to no avail.
- The
final judgment of 19 December 2001 has not been enforced to date.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the old Code of Civil
Procedure, in force until 12 June 2003, concerning enforcement, read
as follows:
Article 338. Issue of an enforcement warrant
An enforcement warrant shall be issued to a plaintiff by
a court, after the judgment has become final...
Article 343. The request for enforcement
The bailiff shall start the enforcement of a judgment at
the request of [one of the parties to the proceedings]...
Article 367. The examination of issues relating to
the discontinuation of enforcement proceedings
Issues concerning the ... discontinuation ... of
enforcement proceedings shall be examined by a judge...His or her
decision is susceptible of appeal.
- The relevant provisions of the Code of Enforcement of
Judgments read as follows:
Article 149. Enforcement of a judgment which obliges
a defendant to take an action
(4) If a defendant refuses to comply with a
judgment by which he was obliged to act in a certain manner and it is
only he who can do so, ... he shall be given a new time-limit to
comply, a written note of the fine imposed on the defendant shall be
remitted [by the bailiff] to the head of the Execution Office and a
new time-limit for compliance shall be instituted. The fine for
individuals varies between 2,000 and 4,000 Moldovan lei. The payment
of the fine does not release the defendant from the obligation to
comply with the judgment.
(5) If the defendant fails again to comply
with the judgment within the prescribed time-limit the head of the
Enforcement Office can apply the measures provided for in paragraph
(4) of the present Article again.
- The relevant provisions of the Criminal Code read as
follows:
Article 320. Non-compliance with a court judgment
(1) Intentional non-compliance with a court
judgment is punishable by a fine of up to 6,000 Moldovan lei, 150-200
hours of community work, or two years' imprisonment.
THE LAW
- The
applicant complained that the non-enforcement of the final court
judgment in his favour had violated his rights under Article 6 §
1 and Article 1 of Protocol No. 1 to the Convention.
Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair hearing ...
within a reasonable time by a tribunal ....”
Article 1
of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
I. THE GOVERNMENT'S REQUEST TO
STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On
17 September 2008 the Government submitted a unilateral declaration
similar to that in the case of Tahsin
Acar v. Turkey ((preliminary
objection) [GC],
no. 26307/95, ECHR 2003 VI)
and informed the Court that they were ready to accept that there had
been a violation of the applicant's rights under Article 6 § 1
and under Article 1 of Protocol No. 1 to the Convention. The
Government drew the Court's attention to the fact that the defendant
in the domestic proceedings was an individual and that the judgment
could not be enforced due to the authorities' failure to determine
his whereabouts. They proposed paying the applicant
EUR 1,500 in respect of non-pecuniary
damage and costs and expenses and argued that this amount would
constitute sufficient just satisfaction in the present case. They
relied on the case of Grivneac v. Moldova (no.
35994/03, 9 October 2007) in which a similar amount had been awarded
to the applicant as a result of finding of a violation on account of
non-enforcement of a final judgement. The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
- The
applicant disagreed with the Government's proposal and argued that
the Government's submissions about the authorities' failure to find
the defendant were untrue and abusive. According to the applicant the
non-enforcement of the final judgment in his favour was due to the
defendant's political influence and to the interference of those in
political power in the affairs of the judiciary.
- The
Court refers to the principles established in its case-law (see, for
instance, Melnic v. Moldova, no. 6923/03, §§
20-31, 14 November 2006) regarding the
examination of unilateral declarations. It would state in particular
that it will “depend on the
particular circumstances whether the unilateral declaration offers a
sufficient basis for finding that respect for human rights as defined
in the Convention does not require the Court to continue its
examination of the case (Article 37 § 1 in
fine)”.
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes that the Government conceded that there
had been a violation of Articles 6 and 1 of Protocol No. 1 to the
Convention and offered to pay the applicant non-pecuniary damage of
EUR 1,500. The Court considers that the primary purpose of the civil
defamation proceedings brought by the applicant against G.T. was to
repair his tarnished reputation and that the payment of non-pecuniary
damage by the latter was only a subsidiary and ensuing consequence of
the court's finding the impugned statement defamatory. In such
circumstances the present case is distinguishable from Grivneac
(cited above), referred to by the
Government, where money was at the centre of the dispute.
- The Court reiterates the principle set in Former
King of Greece and Others v. Greece ([GC] (just satisfaction),
no. 25701/94, § 72, 28 November 2002) according to which a
judgment in which it finds a breach imposes on the respondent State a
legal obligation to put an end to the breach and make reparation for
its consequences in such a way as to restore as far as possible the
situation existing before the breach. The same principle was later
reiterated in the Moldovan leading case concerning non-enforcement of
final judgments (see Prodan v. Moldova, no. 49806/99, §
70, ECHR 2004 III (extracts)). The Court is of the opinion
that this principle is also applicable in cases as the present one,
where a Government seeks to obtain a strike-out decision by means of
a unilateral declaration.
- In
the light of the circumstances of the case, the Court is not
convinced that the reparation proposed by the Government would “put
an end to the breach and make reparation for its consequences in such
a way as to restore as far as possible the situation existing before
the breach”. In particular, the Court
notes that in admitting that there has been a violation of Article 6
§ 1 and 1 of Protocol No. 1 to the Convention, the Government
reiterated that they could not find defendant G.T.'s whereabouts, a
statement which the Court is not ready to accept for the reasons set
out in paragraph 26 below. It therefore considers that respect for
human rights as defined in the Convention and its Protocols requires
the Court to continue its examination of the case (see, by contrast,
Akman v. Turkey
(striking out), no. 37453/97, §§ 23-24, ECHR 2001 VI).
- That
being so, the Court rejects the Government's request to strike the
application out under Article 37 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
II. ADMISSIBILITY OF THE CASE
A. The complaints under Articles 17 and 34 of the
Convention
- In
his observations on the admissibility and merits of the case, the
applicant argued that the Government submitted untrue information to
the Court concerning the impossibility of finding the whereabouts of
defendant G.T. and submitted that such behaviour on behalf of the
Government amounted to a breach of Articles 17 and 34 of the
Convention. The Government did not comment on these complaints.
- 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. It follows that this part of the
application is manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and must be rejected pursuant to
Article 35 § 4.
B. The remaining complaints
- The
Court considers that the applicant's remaining complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and that
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 the complaints.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that his rights guaranteed under the above
Articles had been violated as a result of the failure to enforce the
final court judgment in his favour. He submitted that the
Government's submission concerning the authorities' failure to locate
the defendant were untrue since the latter was a public figure who
occupied important positions in the State administration during the
last decade.
- The
Government disagreed and argued that the non-enforcement was due to
the applicant's failure to assist the authorities in finding the
defendant G.T. They also submitted that the judgment could not be
enforced because the enforcement authorities could not find the
defendant.
- The Court has found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 to the Convention
in numerous cases concerning delays in enforcing final judgments
(see, among other authorities, Prodan v. Moldova, cited above,
and Lupacescu and Others v. Moldova, nos. 3417/02,
5994/02, 28365/02, 5742/03, 8693/03, 31976/03, 13681/03 and 32759/03,
21 March 2006). In the present case, the Court notes that the
applicant has complied with the requirements of the Code of Civil
Procedure (see paragraph 6 above) by obtaining an enforcement warrant
and requesting a bailiff to enforce it. On the other hand, the Court
was not presented with any evidence that the enforcement authorities
took any steps to have the judgment enforced. The Court is not
convinced by the Government's submission that defendant G.T., who was
during the period of non-enforcement a Member of Parliament, Governor
of the Gagauzia region and a member of the central Government of
Moldova, could not be located by the enforcement authorities.
Therefore, the Court finds that the failure to enforce the judgment
of 12 June 2001 constitutes a violation of Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 10,462 in respect of pecuniary and
non-pecuniary damage.
- The
Government did not comment on the applicant's claim.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the violations found
above. Deciding on an equitable basis, the Court awards the applicant
EUR 2,500 for non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,600 for the costs and expenses incurred
before the Court.
- The
Government did not comment on the applicant's claim.
- The
Court awards EUR 800 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Rejects the Government's request to strike the
application out of its list of cases;
- Declares the complaints under Articles 17 and 34
of the Convention inadmissible and the remainder of 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, EUR
2,500 (two thousand five hundred euros) in respect of non-pecuniary
damage and EUR 800 (eight hundred euros), in respect of costs and
expenses, plus any tax that may be chargeable, to be converted into
the currency of the respondent State 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
