THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38875/03
by Ion BUROV
against Moldova
The European Court of Human Rights (Third Section), sitting on 14 June 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 20 November 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ion Burov, is a Moldovan national who was born in 1948 and lives in Chişinău. He was represented before the Court by Mr V. Panţîru, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
A. The circumstances of the case
1) Proceedings concerning the payment of salary arrears
2. On an unspecified date, the applicant, a former policeman, instituted civil proceedings against his ex-employer, the Ministry of Internal Affairs (“the Ministry”), seeking payment of salary arrears.
3. By a final judgment of 19 June 2002, the Supreme Court of Justice ordered the Ministry to pay the applicant an amount of 909 Moldovan lei (MDL) (69 euros (EUR) at the time) in salary arrears and MDL 500 (EUR 38) for his lawyer’s fees: a total equivalent to EUR 107.
4. The amount of MDL 909 represented the difference between the sum which had been effectively paid to the applicant for forced absence from work for the period 1997-2000 (MDL 17,547) and the sum to which he was entitled according to the law (MDL 18,547). The Supreme Court of Justice also ordered the Ministry to calculate and pay the applicant an additional compensation (premiul-recompensă) for a period of work from 1 January 1997 to 24 March 1997.
5. On 29 August 2002 and 24 June 2004 the applicant unsuccessfully sought a reopening of the proceedings which had ended in the final judgment in his favour.
6. According to the applicant, the final judgment in his favour has not been enforced to date.
2) Proceedings concerning the restitution of nationalised property
7. The applicant claims that in 1996 he lodged a court action before the Rîşcani District Court, seeking restitution of nationalised property, which had been previously owned by his family. According to him, the District Court did not examine his claim until 2003. The outcome of these proceedings is unknown.
3) Proceedings concerning annulment of a refusal of a building permit
8. On an unspecified date, the applicant challenged a decision taken by the local authorities to refuse to issue him with a building permit.
9. By a final judgment of 6 June 2002, the Court of Appeal of the Republic of Moldova (Curtea de Apel a Republicii Moldova) rejected his claim as ill-founded.
4) Facts concerning the applicant’s pecuniary situation
10. By a judgment of the Chişinău Regional Court (Tribunalul Chişinău) of 30 October 2002 the applicant was awarded MDL 32,301 (EUR 2,384) in damages for unlawful dismissal. This judgment was confirmed by a final judgment of the Court of Appeal of the Republic of Moldova on 14 January 2003.
11. The applicant submitted documents, according to which he had initiated several sets of civil proceedings between 1997 and 2008, in addition to those summarised above. According to the submitted invoices, he regularly paid his representatives’ fees. Thus, he paid to different lawyers, respectively, MDL 2,970 (approximately EUR 436) in 1997, MDL 524 (approximately EUR 46) in 2000, MDL 1,000 (approximately EUR 87) in 2001, MDL 2,700 (approximately EUR 172) in 2005 and MDL 2,300 (approximately EUR 143) between 2006 and 2008. These payments amounted cumulatively to MDL 9,494 (approximately EUR 884).
12. During 2001 the applicant started to build a decorative fence around his property. According to the invoices, he paid MDL 5,540 (approximately EUR 481) for the construction materials and MDL 1,500 (EUR 137) to the contractors.
13. Finally, the applicant claimed in his just satisfaction claims that he had paid EUR 1,280 in fees to his representative before the Court. He did not ask the Court for legal aid.
B. Relevant domestic law and practice
14. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004‑III (extracts)).
COMPLAINTS
15. The applicant complained under Article 1 of Protocol No. 1 that the final judgment of 19 June 2002 in his favour had not been enforced.
16. Relying on various provisions of the Convention, he also complained that the Rîşcani District Court had failed to examine his claim concerning restitution of nationalised property. Further, he complained as to the outcome of the proceedings which ended in the final judgment of 6 June 2002.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1 on account of the non-enforcement of a final judgment in the applicant’s favour
17. The applicant claims that the failure to pay him an amount of MDL 1,409 (EUR 107) awarded by the final judgment in his favour, as well as the failure to calculate and pay him compensation to which he was entitled for the period from 1 January to 24 March 1997, had been in breach of Article 1 of Protocol No. 1 which provides:
“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.”
18. On 15 March 2010 the Court communicated the complaint relating to the non-enforcement of the final judgment in the applicant’s favour to the respondent Government.
19. The Government rejected the applicant’s contentions. They submitted that the final judgment in the applicant’s favour had been enforced. The Government submitted a letter dated 5 October 2004, sent by the Enforcement Department of the Ministry of Justice to the Chişinău Court of Appeal, returning the case file on the grounds that the final judgment in the applicant’s favour had been enforced.
20. The applicant replied that the documents submitted by the Government were forged and could not be accepted as evidence of enforcement.
21. The Court notes that the facts of the case are disputed and that it cannot be established from the case file whether the final judgment in the applicant’s favour has been enforced.
22. Notwithstanding this dispute, the Court considers that it is not necessary to examine whether the remainder of final judgment in the applicant’s favour has been enforced, because it must first determine whether his complaints 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.
23. The Protocol 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.”
24. Thus, the Court will examine of its own motion whether: (1) the applicant has suffered a significant disadvantage; (2) whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits; and (3) whether the case was duly considered by a domestic tribunal.
1. Whether the applicant has suffered a significant disadvantage
25. 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; Gaftoniuc v. Romania, (dec.), no. 30934/05, 22 February 2011). Further, the level of severity shall be assessed in the light of the financial impact of the matter in dispute and the importance of the case for the applicant.
26. The Court notes at the outset the relatively small size of the pecuniary loss which prompted the applicant to bring his case to the Court. The applicant’s complaint concerned an alleged failure by State authorities to pay a sum equivalent to EUR 107 at the relevant time. Of this sum only MDL 909 (EUR 69) represented the actual salary arrears, the remainder of a much bigger sum actually paid to the applicant (MDL 17,547). The remainder of the award concerned costs and expenses incurred by the applicant during the proceedings. In so far as the additional compensation is concerned, the Court notes that the applicant valued it at MDL 1,591 (EUR 121) and that the Government had not disputed this amount. Thus, the Court is ready to accept that the overall amount at stake in the present case is of EUR 228.
27. In the Court’s view, there is no evidence, in the light of the foregoing, that the applicant’s financial circumstances were such that the outcome of the case would have had a significant effect on his private life.
28. It appears from documents submitted by the applicant that he initiated several sets of civil proceedings between 1997 and 2008 and regularly payed his representatives’ fees, which only according to the documents in possession of the Court amounted cumulatively to MDL 9,494 (approximately EUR 884). Further, he was awarded by the domestic courts MDL 32,301 (EUR 2,384) in damages for unlawful dismissal and he did not complain that this award had not been enforced. It also appears that during 2001 the applicant engaged in building activities, paying approximately EUR 137 to the contractors and EUR 481 for the construction materials. The Court also observes that the applicant was able to pay to his representative before the Court EUR 1,280 in fees without asking for legal aid. Finally, the Court notes that, whilst seeking enforcement of the final judgment in his favour, the applicant twice made use of extraordinary remedies to obtain the reopening of the proceedings which had ended in the final judgment in his favour.
29. The Court is conscious that the impact of a pecuniary loss must not be measured in abstract terms: even modest pecuniary damage may be significant in the light of the person’s individual circumstances and the economic situation of the country or region in which he or she lives. However, while taking into account such varying economic circumstances, the Court considers it to be beyond doubt that, in the circumstances of the present case, the amount at stake in the present case was of minimal significance to the applicant.
30. The Court is mindful at the same time that the pecuniary sum involved is not the only element that determines whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting a pecuniary interest. However, the Court does not consider that any such issues have been raised by the applicant.
31. In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violations of the Convention.
2. Whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits
32. The Court reiterates that under this safeguard clause, it is compelled to continue examining an application if it raises questions of a general character affecting the observance of the Convention (see Tyrer v. the United Kingdom, no. 5856/72, Commission’s report of 14 December 1976, Series B 24, p. 2, § 2; Korolev v. Russia (dec.) and Gaftoniuc v. Romania (dec.), cited above).
33. The Court further observes that the problem of non-enforcement in Moldova has been addressed on numerous occasions in its judgments (see among many other authorities Cebotari and Others v. Moldova, nos. 37763/04, 37712/04, 35247/04, 35178/04 and 34350/04, 27 January 2009). The examination on this application on the merits would not bring any new element to the Court’s existing case-law. Moreover, on 23 July 2010 a new Moldovan Law on bailiffs was enacted upon recommendation of experts of the Council of Europe. This new legislation created a system of private bailiffs aimed at ensuring an effective and timely enforcement of court orders.
34. 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
35. 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 applicant’s initial complaints against the defendant were considered at two levels of jurisdiction and his claims were granted. Further, Moldovan legislation had in place at the relevant time a mechanism for enforcement of judgments through bailiffs in order to ensure the fulfilment of positive obligations imposed upon the State in this respect.
36. Thus, the Court considers that the applicant’s situation does not constitute a denial of justice that can be imputed to the Government.
37. The Court concludes that the applicant’s case was duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b).
4. Conclusion
38. 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.
B. Other complaints
39. Relying on various provisions of the Convention, the applicant claimed that the Rîşcani District Court had failed to examine his claim concerning restitution of the nationalised property of his family. In the Court’s view, this complaint is completely unsubstantiated and should be rejected as manifestly ill-founded in accordance with Article 35 § 3 (a) of the Convention.
40. In so far as the applicant complained of the outcome of the proceedings which had ended in the Supreme Court of Justice’s judgment of 6 June 2002, the Court notes that the applicant has lodged this complaint on 20 November 2003, that is more than one year after the date of the final judgment. Thus, this part of the application should be rejected as being out of time in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy