FOURTH SECTION
DECISION
Application no. 59097/09
Vasile BOTOMEI and S.C. BARTOLO PROD COM S.R.L.
against Romania
The European Court of Human Rights (Fourth Section), sitting on 1 December 2016 as a Committee composed of:
Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on the date indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The list of applicants and the relevant details of the application are set out in the appended table.
2. The first applicant, Mr Vasile Botomei, is a Romanian national, who was born in 1964 and is the sole shareholder and legal representative of the second applicant. The second applicant, S.C. Bartolo Prod Com S.R.L, is a Romanian private company, located in Bacău, Romania. Their application was lodged on 7 September 2009.
3. The Romanian Government (“the Government”) are represented by their Agent, Mrs Catrinel Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
4. In 1996 the first applicant received a building permit allowing him to construct a house. A few months after, when the building was finished, he gratuitously leased the building and the appurtenant land to the second applicant, with the purpose of enabling the latter to conduct commercial activities therein; however, no business licence had been granted to the second applicant, allowing it to operate in the respective building, in so far as the building permit referred to the construction of a house, and not of commercial premises.
5. Upon request from the applicants, on 4 October 2000 the Bacău County Court imposed on the Bacău Municipality the obligation to release a town-planning certificate (certificat de urbanism), a building permit for the construction of business premises, aiming to ex post facto validate the construction built as a house in 1996, as well as a business license allowing the second applicant to operate within the premises of the building. The court held that the Municipality’s refusal to issue the requested documents was unjustified in so far as it had other legal remedies to address the breach of the building permit released in 1996. Upon appeal by the Municipality, the Suceava Court of Appeal upheld the lower court’s decision on 1 June 2001.
6. The applicants requested the Municipality to enforce the outstanding judgment on 16 October 2000, 10 January 2001, 8 August 2002, 23 June 2009 and 17 May 2010, respectively.
7. With regard to the requests from 2000 to 2002, the Municipality replied to the applicants that they could not issue a business license allowing the second applicant to operate in premises that had never been authorised for commercial activities, and that the applicants had not complied with the terms of the building permit issued in 1996. Moreover, the applicants were fined on 21 July 2000 for having undertaken illegal works on the building, measure that had been validated by the final decision of 12 February 2001 given by the Iași County Court.
8. The applicants were fined several times for operating without a building license, for instance on 21 July 2000 and on 3 December 2002.
9. Concerning the applicants’ enforcement requests of 2009-2010, the Municipality replied on 15 July 2009 and 22 July 2010, respectively, informing the applicants that their right to ask that the outstanding judgment be enforced was time barred.
B. Relevant domestic law
10. The relevant domestic legal provisions and procedures concerning the enforcement of final judgments against State authorities are described in the leading case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania (nos. 2699/03 and 43597/07, §§ 36-40, 7 January 2014).
11. Under Decree no. 167/1958 on the statute of limitations, the right to request the enforcement of any deed becomes time barred within three years from the moment when the deed becomes enforceable or from the last enforcement act.
12. 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 decision of 4 October 2000 of the Bacău County Court.
THE LAW
Complaints under Article 6 § 1 and Article 1 of Protocol No. 1 regarding non-enforcement
13. The applicants complained of the non-enforcement of the decision of 4 October 2000 by the Bacău County Court. They relied on Article 6 § 1 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 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.”
14. The Court reiterates that a person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004). Nevertheless, the applicants must show diligence and initiative in complaining before it about the potential continuing failure of the State to enforce the judgment in their favour. In this connection, the Court recalls that the continuing situation may not postpone the application of the six-month rule indefinitely. The Court has, for example, imposed a duty of diligence and initiative on applicants wishing to complain about the continuing failure of the State to comply with its obligations in the context of ongoing disappearances or the right to property or home (see, for example, Varnava and Others v. Turkey [GC], nos. 16064/90 et seq., §§ 159-172, ECHR 2009, and Sargsyan v. Azerbaijan [GC] (dec.), no. 40167/06, §§ 124-148, 14 December 2011). While there are, admittedly, obvious distinctions as regards different continuing violations, the Court considers that the applicants must, in any event, introduce their complaints “without undue delay”, once it is apparent that there is no realistic prospect of a favourable outcome or progress for their complaints domestically (see, for example, Sargsyan v. Azerbaijan, cited above, § 140 and Aleksandar Sokolov v. Serbia, no. 30859/10, §§ 31‑36, 14 January 2014).
15. Turning to the present case, the Court considers that, in view of the repetitive replies received by the applicants from the Municipality, who refused to enforce the outstanding judgment and continued to fine the applicants for having breached the terms of the building permit issued in 1996 (see paragraphs 7-8 above), it should have been apparent to them that there was no realistic prospect of a favourable outcome or progress for their actions domestically, if not after the last reply of 8 August 2002, then as soon as their right to request the enforcement of the judgment became susceptible of being time-barred, namely at the latest on 8 August 2005. Yet the Court notes that it was not until 23 June 2009 that the applicants decided to pursue their request to have the outstanding judgment given in their favour enforced by the domestic authorities; furthermore, it was not until 26 November 2009 that the applicants complained before the Court about their inability to obtain execution of their respective judicial awards.
16. In the light of the above, the Court concludes that the application was introduced before it outside the six-month time-limit (Aleksandar Sokolov, cited above, §§ 31-36, and, Babich and Azhogin against Russia, nos. 9457/09 and 9531/09, §§ 47-54, 15 October 2013) and must be rejected in accordance with Article 35 §§ 1 and 3 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2016.
Hasan BakırcıVincent A. De Gaetano
Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions)
Application no.
Date of introduction
Applicant name
Date of birth
Relevant domestic decision
Start date of non-enforcement period
End date of non-enforcement period
Length of enforcement proceedings
59097/09
07/09/2009
Vasile BOTOMEI
07/01/1964
S.C. BARTOLO PROD COM S.R.L.
Bacău County Court, domestic case file no. 5452/2000, 04/10/2000
01/06/2001
pending
More than 15 years, 1 month and 13 days
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