THIRD SECTION
DECISION
Application no. 21040/06
Vladimir PROHOROV
against the Republic of Moldova
The European Court of Human Rights (Third Section), sitting on 21 October 2014 as a Committee composed of:
Dragoljub Popović, President,
Luis López Guerra,
Valeriu Griţco, judges,
Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 6 May 2006,
Having regard to the decision to communicate the application following the adoption of the pilot judgment in the case of Olaru and Others (Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009),
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 Vladimir Prohorov, is a Moldovan national, who was born in 1963 and lives in Chișinău. He was represented before the Court by Mr V. Iordachi, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant’s parents were victims of the communist repressions of the 1940s and their property was confiscated by the Soviet State.
4. On 5 December 1997 the applicant instituted civil proceedings against the Chișinău Municipal Council seeking the restitution of the apartments confiscated from his parents. By a final judgment of 20 June 2000 the Court of Appeal ordered the eviction of the occupants of the applicant’s apartments and restitution of the apartments to him. This judgment was not enforced to date. Before the Court the applicant complained about the non-enforcement of this judgment.
5. The case was communicated to the Government following the adoption of the pilot judgment in the case of Olaru and others (Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009).
6. After communication, on 28 November 2012 the applicant initiated court proceedings under Law no. 87 (see paragraph 8) seeking the enforcement of the final judgment in his favour and compensation for non‑pecuniary damage in the amount of 100,000 Moldovan lei (MDL) (equivalent to 6,250 euros (EUR)), for pecuniary damage in the amount of MDL 1,635.00 (EUR 100) resulting from paid real estate taxes and for costs and expenses in the amount of MDL 350 (EUR 22). The applicant did not ask compensation for the apartments’ price. On 5 February 2013 the Buiucani District Court acknowledged the violation of the applicant’s rights protected under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in regard to the non-enforcement of the judgment of 20 June 2000 and awarded the applicant MDL 15,000 (EUR 938) as non‑pecuniary damage and MDL 350 (EUR 22) as costs and expenses. The applicant did not appeal this judgment, which became final on 24 April 2013.
7. On 13 January 2014 the judicial bailiff returned the writ of enforcement of the judgment of 20 June 2000 to the applicant for failure to pay enforcement fees, explaining that enforcement proceedings could restart after such fees were paid. The applicant appealed this decision. It appears that proceedings are pending at present.
B. Relevant domestic law
8. Law no. 87, which created a new remedy to address complaints of unreasonable length of proceedings, entered into force on 1 July 2011. 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 3 of the Law provides that a claim for compensation in non-enforcement cases may be submitted while enforcement proceedings are pending or at the latest six months after their termination. 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. Further details of the Law are set out in this Court’s decision in Balan v. Moldova (dec.), no. 44746/08, 24 January 2012.
9. The Enforcement Code, enacted under Law no. 443 of 24 December 2004 reads as follows:
“Section 16. Limitation period for presenting writs for enforcement
(1) A writ of execution may be presented for enforcement in the course of three years after the final judgment in respect of which it was issued became final, unless the law provides otherwise.
Section 17. Suspending the limitation period for enforcement
(1) The limitation period for enforcement shall be suspended:
a) once enforcement proceedings are instituted; ...
(2) After the limitation period has been suspended, it starts running again and the time elapsed before the suspension is not included within the statutory limitation period.
(3) After a non-enforced or a partially enforced writ is returned, the new limitation period for presenting the writ for enforcement shall be calculated from the day when it was returned to the creditor.
Section 86. Restitution of the writ
(3) The restitution of the writ of execution to the creditor shall not prevent its repeated presentation for enforcement under the terms of the present Code. The new limitation period for presenting the writ for enforcement shall be calculated according to Section 17 (3) of the present Code.”
COMPLAINTS
10. Referring to Article 6 of the Convention and Article 1 of Protocol No. 1, the applicant complained of the non-enforcement of the judgment of 20 June 2000.
THE LAW
11. The Government submitted that the applicant had failed to exhaust domestic remedies; in particular that he did not appeal the judgment of the Buiucani District Court of 5 February 2013. They asked the Court to declare the application inadmissible.
12. The applicant disagreed and argued that by his action under Law no. 87 he sought compensation for non-pecuniary damage resulted from the non-enforcement of the final judgment in his favour, for pecuniary damage in the amount of taxes on real estate and for costs and expenses in those proceedings. Before the Court he claimed EUR 5,000 as non‑pecuniary damage, EUR 37,413.62 as pecuniary damage (equivalent to the value of the apartments) and EUR 1,196 as costs and expenses. He contended that he had not lost his victim status because his claims before domestic courts differed from those made before the Court and that he had not been obliged to exhaust the remedy under Law no. 87.
13. The Court does not consider it necessary to rule on this objection since the application is in any event inadmissible for the reasons set out below.
14. The Court reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, among others, Burdov v. Russia (no. 2), no. 33509/04, § 54-60 and 100, ECHR 2009 (extracts)). A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see, as recent authorities, Gäfgen v. Germany [GC], § 116 et seq., ECHR 2010, and Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 76-84, 2 November 2010).
15. Turning to the circumstances of the present case, the Court observes that the applicant lodged a claim with the Buiucani District Court under the new Law no. 87, although he was dispensed from exhausting this remedy (Olaru and others, cited above, § 61). The court partially accepted the applicant’s request and awarded him EUR 938 as non-pecuniary damage. In doing so, it also expressly established a violation of the applicant’s rights protected under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraph 6 above). In the absence of an appeal by the applicant, this judgment became final on 24 April 2013.
16. The Court needs therefore to verify whether the applicant was offered redress for the damage caused to him by the established violation, so as to determine whether he has lost his victim status.
17. The Court notes first that the final judgment of 20 June 2000 in the applicant’s favour has not been enforced to date, since the applicant failed to pay enforcement fees (see paragraph 7). Nevertheless, it is still open to the applicant to resubmit the execution writ within the general limitation period (see paragraph 9).
18. In this respect, the Court notes that the Buiucani District Court’s judgment clearly found a violation of the applicant’s rights. However, it could not award any compensation for pecuniary damage in the absence of a claim and supporting evidence, since it would then act ultra petita. In fact, it appears from the materials in the file that the applicant had not sought the compensation of the apartments’ price but only the amount of paid taxes. Moreover, the Court notes that in respect of non-pecuniary compensation, the applicant’s claims were partially satisfied and that the applicant did not appeal this judgment. In addition, under domestic law (see paragraph 8), the applicant had the right to claim compensation for non-enforcement of a final judgment in his favour. Because enforcement proceedings are not terminated, the applicant may lodge repeatedly with domestic courts a claim of compensation for damages from the State resulted from the continuous non‑enforcement of the final judgment in his favour.
19. The Court observes that it has already declared inadmissible complaints where a violation of Convention rights had been fully established by the domestic courts and where the applicant had not attempted to obtain compensation at the domestic level (see, mutatis mutandis, Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 75-76, 2 November 2010, and Bisir and Tulus v. Moldova, no. 42973/05, §§ 36-37, 17 May 2011). It has also found in the past that the domestic courts’ decisions awarding no compensation in the absence of a claim or awarding only a part of the sum claimed in compensation corresponding to the evidence submitted to them, could be accepted as offering sufficient redress (see, for instance, Vladimir Kolobov v. Russia (dec.), no. 26528/03, 28 June 2011, Daniel-P S.A. v. the Republic of Moldova (dec.), no. 32846/07, 20 March 2012). It does not see any compelling reason to depart from its findings in the above-mentioned cases.
20. In view of the foregoing, the applicant should be considered as having lost his victim status in relation to the present application. Thus, the Court concludes that the applicant is no longer a victim of the alleged violation and that the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Marialena TsirliDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy