Communicated on 18 November 2014
THIRD SECTION
Application no. 27413/09
Maria CIOCODEICA
against Romania
lodged on 30 April 2009
STATEMENT OF FACTS
1. The applicant, Ms Maria Ciocodeica, is a Romanian national who was born in 1969 and lives in Timișoara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The action brought against the private company C.G.H.T. under the provisions of the Labour Code
3. In 2005 the applicant lodged a civil action against her employer, the private company C.G.H.T. (“the company”), seeking to obtain the annulment of the decision of 17 October 2013 dismissing her, and to be awarded various salary entitlements.
On 29 April 2004 the Timiș County Court rejected her action as ill‑founded. The applicant appealed.
In a final judgment of 29 September 2004 (“the judgment”), the Timișoara Court of Appeal allowed her appeal. It ordered the annulment of the dismissal decision and held the company liable to pay the applicant pecuniary damages in the form of all her salary entitlements from 17 October 2003 until the pronouncement of the final judgment, updated and index-linked. The domestic court also awarded the applicant the costs and expenses incurred in the proceedings.
2. The enforcement proceedings
4. On 15 November 2004 the Timiș County Court validated the judgment (“învestire cu formulă executorie”), pursuant to Article 374 of the Romanian Code of Civil Procedure (“the CCP”).
5. The applicant started enforcement proceedings on 21 January 2005, requesting the bailiffs’ office M.S.R. & S.A.I. (“the bailiff”) to enforce the judgment.
6. On 26 January 2005 the bailiff issued a notice of payment (“somație”) and served it on the company.
According to the bailiff’s report of 11 February 2005, the bailiff and the applicant’s lawyer visited the company’s premises. As the company’s legal representative was not present, the bailiff granted the company a further five days in which to enforce the final judgment of their own accord.
7. However, the company refused to fulfill its obligations. Moreover, it lodged a complaint seeking to have the enforcement proceedings annulled.
Pending those proceedings and at the company’s request, on 24 February 2005 the Timișoara District Court ordered the suspension of the enforcement proceedings until a final judgment was given; the suspension was made subject to payment of a deposit of 4,000,000 Romanian lei (“ROL”).
8. In response, on 16 May 2005 the applicant brought urgent proceedings seeking to have the impugned suspension lifted. She argued that the matter was urgent because of the need for her to obtain the salary entitlements that would allow her to provide for herself and her infant.
In a judgment of 18 May 2005 the Timișoara District Court dismissed the applicant’s request, holding that she had not proved the existence of any imminent damage.
9. On 2 June 2005 the Timișoara District Court allowed the company’s complaint against the enforcement proceedings. The court held that the procedural requirements had not been thoroughly complied with in so far as the bailiff had failed to serve the company with a copy of the enforceable judgment.
The applicant lodged an appeal on points of law against the court’s judgment.
On 6 October 2005 the Timiș District Court dismissed the applicant’s appeal on points of law as ungrounded. The first-instance judgment thus became final.
10. The company lodged another request seeking to obtain the annulment of the restraint order (“anularea măsurii de poprire”) issued by the bailiff in respect of its bank accounts. On 21 April 2005 the Timișoara District Court allowed the request, in so far as the restraint order had been issued subsequent to the suspension of the enforcement proceedings ordered by the court (see paragraph 7 above).
11. In the meantime, on 29 June 2005, the bailiff issued another notice of payment. On 4 July 2005 it was posted, together with the enforceable judgment, at the company’s main entrance.
3. Other proceedings brought by the applicant seeking to have the judgment enforced
(a) Action lodged by the applicant in order to speed up the enforcement proceedings
12. On 5 May 2005 the applicant lodged a complaint before the Timișoara District Court seekingto obtain a court order for immediate enforcement of the judgment.
In a decision of 18 August 2005 the Timișoara District Court allowed the applicant’s complaint and ordered the company to pay a coercive fine of ROL 500,000 per day until it fulfilled its obligations.
An appeal by the company against that decision was allowed on
16 December 2005 by the Timiş County Court. It held that the coercive fine had the nature of a civil penalty aimed at securing the enforcement of a personal obligation which could not be otherwise executed, as provided for by Article 580 CCP. However, the company’s debt could be enforced with the assistance of a bailiff; therefore the applicant’s complaint was ill-founded.
(b) Complaint lodged by the applicant with the Ministry of Justice
13. On 12 July 2005 the applicant complained to the Minister of Justice about the outcome of the judgment of 2 June 2005 (see paragraph 9 above). The complaint was lodged under the provisions of Law no. 303/2004, defining the framework for judges’ disciplinary and criminal responsibility and the specific authorities empowered to initiate such proceedings.
On 24 August 2005 the applicant’s complaint was forwarded to the Timișoara Court of Appeal.
On 5 September 2005 the Timișoara Court of Appeal noted that the impugned proceedings had been terminated by a judgment that was final and therefore not subject to appeal.
4. Criminal proceedings lodged by the applicant
14. In 2005 the applicant complained to different State authorities that the company’s representatives had failed to enforce the judgment. She relied on Articles 277, 278 and 280 of the Labour Code and Article 83 of Law no. 168/1999.
15. On 5 December 2006 a criminal investigation was initiated against M.D., the company’s administrator, for refusal to enforce the judgment.
On 4 February 2008 the prosecutor’s office at the Timișoara District Court decided to discontinue the proceedings against M.D. and fined him 1,000 Romanian lei (“RON”). The prosecutor investigating the case found that the acts committed by M.D. could not be classified as an offence.
A complaint lodged by the applicant against that decision was dismissed on 8 April 2008 by the senior prosecutor of the prosecutor’s office at the Timişoara District Court.
On 2 June 2008 both the applicant and M.D. appealed against the prosecutors’ decisions before the Timişoara District Court. The court dismissed both appeals on 17 October 2008. It held that the applicant’s appeal had been lodged outside the time-limit. With regard to M.D.’s appeal it reiterated that, even though he had not enforced the judgment, his actions could not be classified as an offence and, therefore, the administrative fine had been fair.
In a final judgment of 28 January 2009 the Timiş County Court dismissed the appeals on points of law lodged by the applicant and M.D.
B. Relevant domestic law
16. Relevant excerpts from the domestic law on the execution of final judgments, namely the new and old versions of the Romanian Code of Civil Procedure, are to be found in the case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania (nos. 2699/03 and 43597/07,§§ 38-40, 7 January 2014).
17. The relevant parts of the Labour Code, as in force at the material time, read as follows:
Article 277
“Failure to enforce a final judgment concerning the payment of salary entitlements within fifteen days from the date when the interested party requested his or her employer to enforce it shall constitute an offence punishable by a term of imprisonment of three to six months or by a fine.”
18. The relevant part of Law no. 168/1999 regarding the resolution of labour disputes, as in force at the relevant time, read as follows:
Article 83
“Failure to enforce a final judgment concerning the payment of salary entitlements within fifteen days from the date when the interested party requested the company to enforce it shall constitute an offence punishable by a term of imprisonment of three to six months or by a fine.”
19. The relevant parts of the new Civil Code read as follows:
Article 1357
“(1) Anyone who causes damage to another as a result of an unlawful deed committed negligently shall be liable to make reparation for it.
(2) The person who causes the damage shall be liable [in any event] for very slight negligence (culpa levissima – “cea mai ușoară culpă”).”
20. The relevant parts of Law no. 188/2000 regulating the activities of bailiffs read as follows:
Article 56
“(1) If the parties express a wish to continue with the enforcement proceedings, reasons must be given for any refusal by the bailiff to perform his or her duties as described under Article 7 (b) to (i), not later than five days from the date of the refusal.
(2) In the event of an unjustified refusal to perform the duties described under paragraph (1), the interested party may lodge a complaint within five days from the time he or she was made aware of the refusal, before the court with jurisdiction over the area in which the bailiff’s office is located.
(3) All parties shall be summoned for the hearing of the complaint.
(4) The court’s judgment is subject to a single appeal.
(5) The bailiff shall be bound to comply with the final judgment ...”
Article 60
“(1) Bailiffs’ actions shall be subject, in accordance with the law, to judicial review before the courts.
(2) Bailiffs’ professional activity shall be the subject of professional supervision in accordance with the provisions of this law.”
Article 61
“Parties with an interest in or having suffered harm as a result of enforcement proceedings may lodge a complaint in accordance with the provisions of the Code of Civil Procedure.”
Article 62
“(1) The professional supervision shall be carried out by the Ministry of Justice, through the general inspectors, and by the National Union of Bailiffs through its
Board ...”
C. Relevant Council of Europe documents
21. In Resolution 1787(2011) adopted on 26 January 2011, the Parliamentary Assembly of the Council of Europe noted the continuing existence in several States of major structural problems which were causing large numbers of repetitive findings of violations of the Convention and represented a serious danger to the rule of law in the States concerned. The Assembly listed among those deficiencies some major shortcomings in judicial organisation and procedures in Romania, including the chronic
non-enforcement of domestic judicial decisions in general (see paragraph 7.6 of the Resolution).
COMPLAINTS
22. The applicant complains under Article 6 of the Convention (access to a court) and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions) that the State failed to effectively assist her in enforcing the final judgment awarding her salary entitlements.
The applicant complains in substance under Article 13 of the Convention that she did not have an effective remedy at her disposal by which to obtain the enforcement of the final judgment rendered in her favour.
I. QUESTIONs TO THE PARTIES
1. Was the final domestic judgment rendered in the applicant’s favour enforced fully and in due time, as required by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention?
2. Does the national law offer an effective mechanism capable of assisting the applicant in enforcing the final domestic judgment against a private debtor, as required by Article 13 of the Convention?
The Government are invited to indicate the available effective domestic remedies in the regard, and also to provide the Court with relevant case-law on this issue. In addition, specific details should be provided as regards the effective implementation of the civil liability insurance framework covering bailiffs’ professional activities.
II. Questions to the Respondent State
1. Having regard to the number of judgments concerning a violation of Article 6 and/or Article 1 of Protocol No. 1 as a result of the non‑enforcement of final domestic judgments against private debtors, and the number of cases pending before the Court concerning similar issues, could it be considered that there is a systemic problem and/or practice incompatible with the Convention?
2. If so, do the Romanian Government envisage any general measures to address this problem?
Full & Egal Universal Law Academy