FOURTH SECTION
DECISION
Application no. 33069/05
by Galina and Boris CERICENCO
against Moldova
The European Court of Human Rights (Fourth Section), sitting on 4 March 2008 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
Stanislav Pavlovschi,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 31 August 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Galina Cericenco and Mr Boris Cericenco are Moldovan nationals who were born in 1946 and 1941 respectively and live in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are spouses and also the owners of an individual enterprise (“the company”). Following a dispute between the company and the State-owned power company “Moldtranselectro” (“the debtor”), by a judgment of 25 October 2001 the Cassation Panel of the Economic Court ordered the latter to pay the company 315,828.94 Moldovan lei (MDL) (the equivalent of 27,523.7 euros (EUR) at the time). The judgment became final and enforceable on 19 March 2002.
On different dates in 2002 and 2003 enforcement warrants were sent to the bank, where the debtor had its bank accounts. Following numerous complaints lodged with the bailiff about non-enforcement of the judgment in favour of the company, on an unspecified date in August 2003 the company was paid MDL 13,019.28 (EUR 862.19).
On 6 May 2004 the Centru District Court discontinued the enforcement proceedings on the ground that the debtor did not have any assets. The company appealed.
By a final decision of 7 October 2004 the Chişinău Court of Appeal upheld the appeal, quashed the decision of 6 May 2004 and ordered the bailiff to ensure the enforcement of the judgment of 25 October 2001. It also found, inter alia, that after 20 August 2003 the bailiff had not taken any steps in order to enforce that judgment.
On 18 January 2005 the company was paid MDL 8,000 (EUR 490).
On 25 May 2005 the Centru District Court again discontinued the enforcement proceedings on the ground that the debtor did not have any assets or money. The company appealed.
By a final decision of 21 December 2005 the Chişinău Court of Appeal upheld the appeal, quashed the decision of 25 May 2005 and ordered the bailiff to ensure the enforcement of the judgment of 25 October 2001. It found that the bailiff had not fully verified whether the debtor had sufficient assets or money.
The outstanding judgment debt of MDL 294,809.66 (EUR 26,171.51) has not been enforced to date.
B. Relevant domestic law
The relevant domestic law was set out in Cooperativa Agricola Slobozia-Hanesei v. Moldova, no. 39745/02, §§ 12 and 13, 3 April 2007.
In addition, the relevant provisions of the Law on entrepreneurship and enterprises no. 845 of 3 January 1992 read as follows:
Section 14: Individual enterprise
“(1) An individual enterprise is an enterprise owned by a citizen or by members of his/her family, with a right of co-ownership. The property of an individual enterprise forms part of the citizen’s (family’s) assets (...)
An individual enterprise is equivalent to an individual entrepreneur.
(2) An individual enterprise is not a legal person and appears in legal relationships as an individual entrepreneur/natural person (...)”
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the failure to enforce in full the judgment of 25 October 2001.
They also complained under Article 13 of the Convention in conjunction with Article 6, about the lack of effective remedies in respect of the full enforcement of the same judgment.
THE LAW
On 23 November and 6 December 2007 the parties submitted to the Court signed declarations accepting a friendly-settlement agreement, according to which the Government had offered
“to pay MDL 566,775 (five hundred and sixty-six thousand seven hundred and seventy-five Moldovan lei) (approximately EUR 34,167) and EUR 1,600 (one thousand six hundred euros) to Mrs Galina Cericenco and Mr Boris Cericenco with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
These sums, which are to cover any pecuniary and non-pecuniary damage, will be free of any taxes that may be applicable. The sum in euros will be converted into Moldovan lei at the rate applicable on the date of payment. The sums will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay the sums within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.“
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reason to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy