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THIRD
SECTION
DECISION
AS TO THE
ADMISSIBILITY OF
Application no.
2694/04
by Gheorghe and Maria ŢARĂLUNGĂ
against
Romania
The
European Court of Human Rights (Third Section), sitting on 7 December
2010 as a Chamber composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 18 November 2003,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Gheorghe Ţarălungă
and Ms Maria Ţarălungă,
are Romanian nationals who were born in 1934 and 1936 respectively
and live in Bacău. The Romanian
Government (“the Government”) were represented by their
Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- In
1991 the applicants brought civil proceedings against their
neighbour, alleging that the latter had built a fence and thus
abusively occupied a plot of some 40 sq. m of their land. They sought
to recover that land and asked the court to settle the boundary
between their properties. Witnesses were heard and two expert reports
were produced in the proceedings.
- On
15 May 1991 the Bacău District Court dismissed their action,
considering that the evidence did not support their claims.
- The
applicants appealed. On 20 September 1991 the Supreme Court of
Justice upheld a request by the applicants to transfer the
proceedings to another court due to legitimate doubt as to judges’
objective impartiality.
- On
7 November 1991 the Vrancea County Court allowed their appeal,
quashed the previous judgment and, considering that further evidence
should be taken, kept the file for examination. Witnesses were heard
and another expert report was produced in the proceedings.
- On
1 June 1992 the Vrancea County Court, by a final decision, allowed
their action. It found that the fence built by the applicants’
neighbour was not straight, but curved, and thus had occupied a part
of the applicants’ property. Therefore, in the operative part
of its judgment, the court ordered the other party to return that
land to the applicants and, in accordance with one of the expert
reports, fixed the boundary between the two properties as being the
straight line connecting the northern and southern extremities.
- On
9 September 1992 the applicants sought enforcement of that judgment.
- On
2 October 1992 the applicants requested the bailiff to adjourn the
enforcement. Further attempts of enforcement by the bailiff took
place on 4 December 1992 and 26 March 1993. In an official
record of 25 May 1993, following a visit on the spot, the bailiff,
relying on an error in demarcation, certified the impossibility to
draw a straight line between the northern and southern extremities,
as provided by the final judgment. The applicants refused to sign the
official record.
- In
1994 the applicants lodged a criminal complaint against their
neighbour for non-compliance with court decisions. On 7 December 1994
the public prosecutor found no reason to start criminal proceedings.
- The
applicants further complained about the non-enforcement before
different State authorities.
- On
12 June 1994, 31 October 1995 and 16 October 1996 the Ministry of
Justice informed them that the bailiff was not responsible for the
delay in execution. Since the execution had not been brought to a
conclusion, the existing obstacles were to be settled by an objection
to execution introduced under Article 399 et seq. of the Code of
Civil Procedure.
- On
4 August 1994 the Prefecture of Bacău informed the applicants
that they may lodge a complaint before the court in charge with the
execution or a criminal complaint for disturbance of possession.
- On
18 June 1995 the judge in charge with the enforcement of civil
decisions informed the applicants that they had the possibility to
lodge an objection to execution to complain about the discordance
between the expert reports produced in the proceedings and the
practical situation on the spot.
- The
applicants have not lodged an objection to execution, considering
that the President of the Bacău District Court was not
impartial.
B. Relevant domestic law
- The
relevant Articles of the Code of Civil Procedure, as amended by Law
no. 59/1993, provide:
Article 399
“Any enforcement may be challenged by any
aggrieved person or other person concerned...”
Article 400
“Interlocutory applications and any disputes
arising between the parties ... over the meaning, scope or
application of the operative provisions of a judicial decision which
is being executed shall be made to the judicial authority which
issued the authority to execute...”
COMPLAINTS
- The
applicants complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention about the
non-enforcement of the judgment of 1 June 1992.
- The
applicants complained under Article 14 of the Convention that, as
their neighbour had close relationships with members of the domestic
courts, they had been discriminated in their attempts to enforce the
final decision of 1 June 1992.
THE LAW
- The
applicants complained about the non-enforcement of the judgment in
their favour. They relied on Articles 6 § 1 and 14 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
- The
Government submitted that the Court had no jurisdiction
ratione temporis to examine the alleged non-enforcement,
since the last act of execution was performed on 25 May 1993. They
also raised an objection of incompatibility ratione personae,
arguing that the applicants were no longer victims within the meaning
of Article 34 of the Convention because their right to request the
enforcement had been time-barred. Finally, the Government argued that
the applicants had not exhausted domestic remedies because, on the
one hand, they have not lodged an objection to execution in order to
clarify the provisions of the final decision and, on the other hand,
they have not brought disciplinary proceedings against the bailiff.
- The
applicants contested those arguments.
- The
Court does not need to address all the issues raised by the parties
as the application is in any event inadmissible for the following
reasons.
- The
Court reiterates that pursuant to Article 35 § 1 of the
Convention an application should be lodged within a period of six
months from the date on which the final decision was taken.
Furthermore, when the alleged violation constitutes a continuous
situation, the six-month time limit cannot start until the continuous
situation that gave rise to the alleged violation ends (Sabin
Popescu v. Romania, no. 48102/99, § 50, 2 March 2004).
- The
Court also recalls that in the case of Cone v.
Romania, (no. 35935/02, §
25, 24 June 2008), it had conceded that a continuous violation could
end in a situation when there was an objective impossibility to
enforce a judgement and the applicant became aware of this. The Court
concluded in that case that the six-month time-limit should be
calculated from the date of the opening of the winding-up procedure
of the company which had the obligation by virtue of a final judicial
decision to reinstate the applicant in that case in her previous
position.
- In
the instant case, the Court notes that on 25 May 1993, the bailiff
drew up a last enforcement report according to which it was
impossible to enforce the judgement (see paragraph 9 above). In
another letter addressed to the applicants on 18 June 1995, the judge
in charge of the enforcement of civil decisions reiterated to the
applicants that there was an error of calculation in the expert
report which was relied upon in the final decision of 1 June 1992 and
therefore the said decision could not be enforced. By the same
letter, the applicants were informed that they could lodge an
objection to execution.
- Taking
into account the above, the Court considers that, at the very latest
on 18 June 1995, the applicants were informed and aware of the fact
that the judgement could not be executed. The Court notes that since
that date until 18 November 2003, when they lodged the complaint with
the Court, no further enforcement act had been undertaken. From that
date, the applicants were thus aware that the authorities in charge
of assisting them in the enforcement proceedings considered that
there was an objective impossibility to enforce that judgement and
that they would not take any other action for enforcement unless the
applicants lodged an objection to execution.
- The
Court considers therefore that, as of the very latest 18 June 1995,
it must have been apparent to the applicants that unless they
undertook the actions prescribed by the authorities, they could not
realistically expect any positive development for the enforcement of
the judgement in cause.
- By
waiting until November 2003, that is for a period of more than eight
years during which there were no intervening events capable of
suspending the running time, the applicants in the instant case have
failed to lodge their complaint before the Court within the six-month
time-limit from the date, when at the latest, they became aware that
the public authorities considered that the judgement could not be
enforced.
- It
follows that the application must be rejected under Article 35 §§
1 and 4 for being lodged outside the six-month time-limit.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Josep Casadevall
Deputy
Registrar President