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THIRD
SECTION
DECISION
Application no.
29218/05
by Pantelimon and Vasilica SAVU
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 11 October 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 2 August 2005,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Pantelimon Savu (the first applicant)
and Ms Vasilica Savu (the second applicant), are Romanian
nationals who live in Izvoarele. They were represented before the
Court by Mr G. Dumitrache, a legal adviser practising in Târgovişte.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants,
may be summarised as follows.
1. Request to obtain a certificate from the mayor of
Voineşti
- On
31 October 2002 the applicants lodged a judicial complaint against
the mayor of the municipality of Voineşti (“the mayor”),
seeking an order for the latter to issue a certificate concerning
land ownership rights within the municipality during the period from
1959 to 1963, under sanction of penalty payments. They indicated that
they needed the certificate in the framework of a different set of
proceedings, aimed at obtaining recognition of ownership rights over
a plot of land (see the proceedings described in paragraphs 5 and 6
below). They wanted to rely on that certificate to prove their prior
ownership rights over the claimed plot of land. In a final decision
of 3 February 2003 the Ploieşti Court of Appeal ruled
that the mayor should issue the certificate that the applicants had
requested, under sanction of penalty payments of 100,000 Romanian lei
per day until the main obligation had been executed.
- The applicants appealed to a bailiff for the
enforcement of the final decision of 3 February 2003, seeking mainly
the payment of penalties. The mayor contested all of the attempts at
forced execution. Final decisions were delivered by the Dâmboviţa
County Court on 5 November 2004, 19 April 2005 and 29
September 2008. The first decision dismissed the mayor’s
challenge and indicated that the decision of 3 February 2003 could be
enforced. The latter two decisions allowed the mayor’s
challenge and declared void all execution measures. In so ruling, the
County Court indicated that the penalty payments imposed by the final
decision of 3 February 2003 which the applicants sought to
enforce could not be enforced with the assistance of a bailiff, as
only a court could determine the total amount to be paid, by
assessing the damage incurred by the creditors as a result of the
delay in enforcing the decision. It then established that the
applicants had failed to lodge such a judicial request.
2. Request to obtain restitution of land
- On
an unspecified date in 2002, the first applicant lodged a judicial
request with the aim of having his ownership rights over a plot of
land recognised. In a final decision of 27 August 2003, the Ploieşti
Court of Appeal allowed his request and recognised his ownership
rights, by referring, inter alia, to a certificate issued by
the Voineşti town hall, which indicated that he used to own this
plot of land in the period between 1959 and 1963.
- This
judgment was partly enforced in 2004, when an ownership title deed
was issued for part of the land. The first applicant received
possession of the whole plot of land on 25 September 2008, and an
ownership title deed concerning the same plot was issued on 5 January
2009.
B. Relevant domestic law and practice
- Article
5803 § 2 of the Romanian Code of Civil Procedure
(CCP), read together with Article 574, as in force at the time of the
events, provided that any damage incurred as a result of a failure to
execute an obligation to take a certain action was to be determined
by a court, which should deliver its decision after having summoned
the parties.
- In
a final decision of 12 December 2005 the High Court of Cassation and
Justice (HCCJ) interpreted the above-mentioned provisions of the CCP
with a view to harmonising the different interpretations that had
been adopted by the domestic courts. The HCCJ ruled that penalty
payments imposed in a judicial decision finding an obligation to take
a certain action or to refrain from taking a certain action were not
directly enforceable, but had to be quantified by a court in a
subsequent decision. That latter court decision should determine the
actual amount to be paid by the debtor, which would be the equivalent
of the damage which had been incurred by the creditor owing to the
delay in enforcing the main obligation.
- Article
5803 of the CCP was amended on 12 January 2007 with the
insertion of a new paragraph which expressly forbids the awarding of
penalty payments in favour of creditors in the context of enforcement
of an obligation to act or not to act in a certain way.
- The
new CCP, still not enforced, maintains this prohibition.
COMPLAINTS
- The
applicants complained under Articles 6 and 13 of
the Convention and Article 1 of Protocol No. 1 to the Convention that
the final decisions of 3 February 2003 and 27 August 2003 had not
been executed.
- In
a letter of 9 February 2009, the applicants declared that following
the execution of the final decision of 27 August 2003, they requested
the Court to examine only their complaint in respect of the failure
to execute the final decision of 3 February 2003.
THE LAW
- The
applicants complained about the non-enforcement of the judgments in
their favour. They relied on Article 6 § 1 and Article 13 of the
Convention and Article 1 of Protocol No. 1 to the Convention, which,
in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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.”
- As
regards the complaint concerning the non-enforcement of the final
decision of 27 August 2003, the Court takes notes of the applicants’
letter of 9 February 2009, informing the Court that the matter had
been resolved and that they did not want the Court to examine the
matter further. The Court therefore decides to strike out this part
of the application in accordance with Article
37 § 1 (c) of the Convention.
- As
to the complaint concerning the non-execution of the final decision
of 3 February 2003, the Court notes at the outset that this decision
comprised two elements: first, the obligation on the mayor to issue a
certificate concerning land ownership rights within the municipality
of Voineşti during the period from 1959 to 1963 and secondly,
the obligation on the mayor to pay penalties until he complied with
the first obligation.
- The
Court further notes that the second obligation imposed on the mayor,
the payment of penalties, was subsidiary to the first obligation, its
aim being to compel the debtor to comply with the main obligation. In
this regard, it should be observed that in previous cases against
Romania, the Court emphasised that under Romanian law daily penalties
were not directly enforceable, as a creditor had to first lodge a
judicial request to have their actual amount determined according to
the damage they had incurred as a result of the delay or lack of
execution of the main obligation (see Gavrileanu v. Romania,
no. 18037/02, § 66, 22 February 2007, and Ciornei v. Romania,
no. 6098/05, § 26, 21 July 2009).
- Taking
into account these elements, the Court considers that it has to
determine next whether the applicants’ complaints concerning
the non execution of the final decision of 3 February 2003 are
admissible under Article 35 of the Convention, as amended by Protocol
No. 14 to the Convention, which entered into force on 1 June
2010.
- Protocol
No. 14 added a new admissibility requirement to Article 35
which, in so far as relevant, provides as follows:
“3. The Court shall declare inadmissible any
individual application submitted under Article 34 if it considers
that:
...
(b) the applicant has not suffered a significant
disadvantage, unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected
on this ground which has not been duly considered by a domestic
tribunal.”
- The
Court reiterates that the new provision applies from the date of its
entry into force to all applications pending before the Court, except
those which have already been declared admissible (see Gaftoniuc
v. Romania (dec.), no. 30934/05, 22 February 2011).
- Thus,
the Court will examine of its own motion whether following the
alleged non-execution: (a) the applicants have suffered a significant
disadvantage; (b) respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits; and (c) the case was duly considered by a
domestic tribunal.
1. Whether the applicants have suffered a significant
disadvantage
- The
Court notes that the main element of the criterion introduced by
Protocol No. 14 is whether the applicant has suffered a significant
disadvantage.
- The Court has previously held that this criterion
applies where, notwithstanding a potential violation of a right from
a purely legal point of view, the level of severity attained does not
warrant consideration by an international court (see Adrian Mihai
Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010;
Korolev v. Russia (dec.), no. 25551/05, 1 July 2010;
and Gaftoniuc, cited above). Further, the level of
severity must be assessed in the light of the financial impact of the
matter in dispute and the importance of the case for the applicant.
- In
the circumstances of the present case, the Court reiterates that the
main obligation to be executed was the obligation to issue a
certificate concerning land ownership rights within the municipality
of Voineşti during the period from 1959 to 1963. As such, this
obligation cannot be quantified financially. Nevertheless, taking
into account the applicants’ submissions that this certificate
was needed in order for them to prove their ownership rights in the
framework of the proceedings in which they sought restitution of a
plot of land, the Court is ready to accept that these proceedings
concerned a civil right within the meaning of Article 6 § 1 of
the Convention which was important for the applicants.
- The
Court notes next that in a final decision of 27 August 2003, the
domestic courts recognised the first applicant’s ownership
rights over the plot of land that he claimed and in so deciding, they
relied in particular on a certificate that had been issued by the
town hall concerning land ownership rights within the municipality of
Voinesti during the period from 1959 to 1963.
- Without
deeming it necessary to rule whether the certificate used in the
framework of the proceedings concerning the first applicant’s
ownership rights was exactly the same certificate that constituted
the object of the proceedings against the mayor, the Court finds that
from 27 August 2003, when the ownership rights over the claimed plot
of land were recognised in a final judicial decision, the purpose for
which they sought to obtain the certificate had been attained. The
applicants did not put forward any other reason to justify the
purpose of their claim against the mayor, besides the assertion that
they needed the certificate in order to prove their prior ownership
rights over the land claimed in the proceedings described under
paragraphs 5 and 6 above.
It
follows, therefore, that from the date when their ownership rights
over the claimed plot of land had been recognised in a final judicial
decision and the purpose for which they sought to obtain the
certificate had been attained, the applicants cannot be deemed to
have suffered a significant disadvantage as a result of the alleged
non-execution of the final decision of 3 February 2003 as regards the
obligation to issue a certificate.
- Moreover,
taking into account the subsidiary nature of the obligation to pay
penalties, as a mechanism for compelling a debtor to comply with the
main obligation, the Court considers likewise that the failure to
enforce that decision in respect of this subsidiary obligation did
not cause the applicants a significant disadvantage.
- As
to the period before 27 August 2003, the Court does not find the
delay of almost seven months excessive (see, mutatis mutandis,
Fedorov and others v. Russia (dec.), no. 33382/04,
17 January 2008). It therefore concludes that this delay
did not cause the applicants a significant disadvantage either.
- In
view of the foregoing, the Court concludes that the applicants have
not suffered a significant disadvantage as a result of the alleged
non-enforcement of the final decision of 3 February 2003.
2. Whether respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits
- The
Court further observes that the problem of non-enforcement in Romania
has been addressed on numerous occasions in its judgments (see, among
many other authorities, Durdan v. Romania, no. 6098/03,
26 April 2007, and Şurtea v. Romania,
no. 24464/03, 25 November 2008). The examination of
this application on the merits would not introduce any new element
in this regard (see Gaftoniuc, cited above).
- The
Court therefore concludes that respect for human rights as defined in
the Convention and its Protocols does not require an examination of
the application on the merits.
3. Whether the case was duly considered by a domestic
tribunal
- The
Court observes that Article 35 § 3 (b) does not allow the
rejection of an application on the grounds of the new admissibility
requirement if the case has not been duly considered by a domestic
tribunal.
- In
the Court’s view, the facts of the present case taken as a
whole disclose no denial of justice at the domestic level. The
applicants’ initial complaints against the mayor were
considered at two levels of jurisdiction, and their claims were
granted. Furthermore, Romanian legislation had in place at the
relevant time a mechanism for the enforcement of judgments in order
to ensure the fulfilment of positive obligations imposed upon the
State in this respect (see, mutatis mutandis, Korolev,
cited above, and Burov v. Moldova (dec.), no. 38875/03).
- The
applicants’ subsequent attempts to enforce the judgment failed,
as the domestic courts found that they had not brought a judicial
action to determine the actual amount of the penalty payments due.
This situation does not constitute a denial of justice imputable to
the authorities.
- The
Court concludes therefore that the applicants’ case was duly
considered by a domestic tribunal within the meaning of Article 35 §
3 (b).
4. Conclusion
- The
three conditions of the new inadmissibility criterion having
therefore been satisfied, the Court finds that this complaint must be
declared inadmissible under Article 35 §§ 3 (b) and 4
of the Convention.
For these reasons, the Court unanimously
Decides
to strike the application out of its list of cases in so far as it
relates to the complaint concerning the non-execution of the final
decision of 27 August 2003 in accordance with Article 37 §
1 (c) of the Convention;
Declares
the remainder of the application inadmissible in accordance with
Article 35 § § 3 (b) and 4 of the Convention.
Santiago Quesada Josep
Casadevall Registrar President
