THIRD SECTION
DECISION
Application no. 31856/07
Ion MANASCURTA
against Moldova
The European Court of Human Rights (Third Section), sitting on 14 February 2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 13 July 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ion Mânăscurtă, is a Moldovan national who was born in 1959 and lives in Talmaza. He was represented before the Court by Mr Grigore Botezat, a lawyer practising in Ştefan-Vodă. The Government was represented by their Agent, Mr Vladimir Grosu.
A. The circumstances of the case
1. Domestic judgment in favour of the applicant and its enforcement
2. The facts of the case may be summarised as follows.
3. The applicant, a farmer, registered with the Talmaza local council a private company, set up to operate a sheep farm, which the applicant subsequently acquired. The plot of land next to the farm, of a total surface of 15 hectares, was used by L.C. under the terms of a 20-year lease contract which he had signed with the local council on 30 January 2003. On 12 August 2003, the applicant agreed with L.C. that he would replace the latter in the lease contract with the local council. The applicant intended to use the plot of land as a pasture for his farm.
4. On 28 May 2006, the local council adopted a decision annulling the lease contract of 30 January 2003 and its own decision of 18 May 2006.
5. The applicant filed a court action against the local council, seeking an order obliging the latter to annul the decision adopted on 28 May 2006.
6. On 11 December 2006, the Ştefan-Vodă District Court found in the applicant’s favour and ordered the local council to mark the boundaries of the plot of land of 15 hectares used by the applicant under the terms of the lease contract and to refrain from any measures which could prevent the applicant from using it, and to issue the applicant with the documents necessary for carrying out the farm’s reconstruction. The decision was upheld on appeal by the Bender Court of Appeal on 16 January 2007. Despite attempts by the applicant to obtain the enforcement of the final judgment in his favour, it has not been enforced to date.
2. The Olaru and others pilot judgment and its consequences for similar cases
7. On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part).
3. The creation of a new domestic remedy and subsequent developments
8. On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings.
9. On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 11 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible.
10. By a letter of 6 November 2011 the applicant informed the Court that he intended to make use of the new remedy and that he had already initiated proceedings in accordance with Law no. 87. He did not dispute the effectiveness of the new remedy.
B. Relevant domestic law
11. According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. Under section 1 of the law, the provisions of the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. Section 4 of the law states that the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint.
12. At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings.
COMPLAINTS
13. Referring to Article 6 of the Convention and Article 1 of Protocol No. 1, the applicant complained that the State had failed to ensure the enforcement of the binding and enforceable judgments in his favour.
THE LAW
14. The Court will first determine whether the applicant complied with the rule of exhaustion of domestic remedies set out in Article 35 of the Convention, which provides, in so far as relevant:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
15. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24; Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I).
16. Nevertheless, the only remedies which Article 35 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Dalia v. France, 19 February 1998, § 38, Reports 1998‑I). In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Van Oosterwijck v. Belgium, 6 November 1980, § 36, Series A no. 40, and Akdivar and Others, cited above, § 67). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Van Oosterwijck, cited above, § 37; Akdivar and Others, cited above, § 71; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX).
17. An assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002‑IX; Charzyński v. Poland (dec.), no. 15212/03, § 35, ECHR 2005‑V; Grzinčič v. Slovenia, no. 26867/02, §§ 106-111, 3 May 2007; and Eskilsson v. Sweden (dec.), no. 14628/08, 24 January 2012).
18. The Court notes that the applicant agreed to use the new remedy and that the proceedings initiated by him under Law no. 87 are still pending. The applicant did not dispute the effectiveness of the new remedy. In this respect the Court recalls that in Balan v. Moldova ((dec.), no. 44746/08, 24 January 2012) it has held that the new remedy introduced by Law no. 87 was designed to address the issue of delayed enforcement of judgments and that it was not ineffective. It was also held that in spite of the fact that the new remedy only became available after the introduction of that application, the applicant was obliged to use it and that using it did not constitute and excessive burden for the applicant and for other applicants in a similar position.
19. Having regard to its findings in Balan, the Court concludes that the present applicant was also required by Article 35 § 1 to avail himself of the new domestic remedy by pursuing the domestic proceedings under Law no. 87. It notes, however, that such proceedings have not been completed by the applicant.
20. It follows that his application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy