SECOND SECTION
DECISION
Application no. 53262/12
Dmitrii SAROV
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 8 June 2021 as a Committee composed of:
Carlo Ranzoni, President,
Valeriu Griţco,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 26 July 2012,
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
The applicant, Mr Dmitrii Sarov, is a Moldovan national, who was born in 1952 and lives in Chișinău. He was represented before the Court by Mr A. Bivol, a lawyer practising in Chișinău.
The Government were represented first by their Agent, Mr M. Gurin and later by their Agent ad-interim Ms R. Revencu.The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Following court proceedings between the applicant and company A., which ended by a final judgment of 17 September 2002, the latter was to pay the former 12,259 United States Dollars (USD).
The applicant formally applied for the enforcement of the above judgment on 30 October 2006. However, the authority responsible for the enforcement of judicial decisions refused to initiate the enforcement proceedings on the ground of statute of limitations. In particular, it argued that according to the law, an interested person could request the enforcement of a judgment not later than three years from the date when it became final.
The applicant challenged the refusal in courts and on 30 March 2008 the Chișinău Court of Appeal finally upheld his action and ruled that he had not missed the time-limit for requesting the enforcement of the judgment of 17 September 2002.
In the meantime, the applicant and other persons lodged an action with the Economic Court to start the bankruptcy procedure in respect of company A.
By a judgment of 31 March 2008 the Economic Court ordered the initiation of the bankruptcy procedure in respect of company A. However, that judgment was quashed by the Supreme Court of Justice on procedural grounds.
On 23 June 2008 the applicant lodged an official request with the Centru office, which is responsible for the enforcement of judicial decisions, in order to have the judgment of 17 September 2002 enforced.
On 2 December 2008 the Centru Office issued a decision in which it stated inter alia that following verification it had learned that Company A. had no funds on its accounts nor property in the sector of the city covered by the Centru office. It also discovered that according to the cadastre the debtor company may have some immovable property in another sector of the city. Therefore, it transferred the enforcement file to the Buiucani office.
On 28 April 2009, the Buiucani office issued a decision in which it stated inter alia that following verification it resulted that the debtor had no property in the sector. Also, following a request by the applicant company, the Buiucani Office decided to transfer the enforcement file to the Râșcani Office.
On 18 March 2010 the Râșcani Office transferred the file back to the Buiucani Office because that office was charged with the enforcement of another judicial decision in favour of company A. On the same date the latter office informed the applicant that the judgment of 17 September 2002 could not be enforced due to the lack of any assets belonging to the debtor company.
On 4 November 2010 the Centru District Court upheld an action lodged by the applicant against the Centru Office complaining of lack of an action by the enforcement authority. The court noted that, according to the law, a judgment had to be enforced within three months and noted that the enforcement authority did not adduce sufficient evidence to prove that it took all necessary measures in order to have the judgment of 17 September 2002 enforced. The court ordered the authority to take all necessary measures in order to have the judgment of 17 September 2002 enforced, without specifying what such measures might be.
On 9 February 2011 the Centru Office wrote to Company A. again requesting it to comply with the judgment of 17 September 2002.
On 5 August 2011 the same office issued a decision by which it decided to terminate the enforcement proceedings in view of the lack of assets belonging to Company A. The applicant challenged that decision in court and had it quashed.
On an unspecified date the applicant lodged an action in accordance with Law No. 87 complaining about the failure of the enforcement authority to enforce the judgment of 17 September 2002 in a timely manner.
By a judgment of 31 January 2012 the Centru District Court dismissed the applicant’s action on the ground that the enforcement authority took all reasonable measures to have the judgment of 17 September 2002 enforced but to no avail due to lack of funds or assets belonging to the debtor. The court also found that the impossibility to have the judgment enforced was due to the applicant’s own behaviour who applied for the enforcement of the judgment of 17 September 2002 only on 30 October 2006, that is more than four years later.
On 20 June 2012 the Chișinău Court of Appeal dismissed the applicant’s appeal against the above judgment and upheld the lower court’s judgment.Relevant domestic law
According to Law No. 87 of 21 April 2011, 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 to claim compensation.
According to section 1 of the law, the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law.
According to section 4 of the law, 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.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention about the non‑enforcement of the judgment of 17 September 2002.
THE LAW
The applicant argued that the enforcement authority did not take all necessary measures to enforce the judgment of 17 September 2002. The relevant provisions of Article 6 § 1 of the Convention and or Article 1 of Protocol No. 1 read as follows:
Right to a fair trial
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Protection of property
“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.”
The Government submitted that there was no breach of the provisions invoked by the applicant.
The Court recalls that the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of a case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The State’s responsibility for enforcement of a judgment against a private person extends no further than the involvement of State bodies in the enforcement procedures (see Fuklev v. Ukraine, no. 71186/01, § 67 and §§ 90-11, 7 June 2005). The Court’s only task is to examine whether the measures taken by the authorities were adequate and sufficient. In cases such as the present one, where the debtor is a private person, the State has to act diligently in order to assist a creditor in execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).
Turning to the facts of the present case, the Court notes in the first place that the applicant did not indicate which measures could have been taken but were not taken by the execution authorities in order to secure the enforcement of the judgment of 17 September 2002. However, more importantly, the applicant failed to adduce any evidence to counter the findings of the national execution authorities and of the national courts to the effect that Company A. had no funds on its accounts or any assets which could be sold or transmitted to the applicant on account of the debt. Indeed, the applicant seems to have been aware of the matter himself since he had initiated bankruptcy proceedings against Company A., proceedings which were not successful merely on account of problems of a procedural nature.
Moreover, the Court cannot but observe that it was the applicant’s choice not to apply for the enforcement of the judgment of 17 September 2002 for some four years. The refusal of the enforcement authorities to start the enforcement proceedings after such a delay did not appear to be arbitrary or abusive on the face of it, given the provisions of the statute of limitations. In any event, even assuming that the refusal was debatable, the applicant did not prove any causal link between that refusal and the non-enforcement. In other words, the applicant did not prove that Company A. had funds and assets between 2006 and 2008 and that therefore, the judgment could have been enforced had the enforcement authority not invoked the statute of limitations.
In the light of the above, the Court cannot but conclude that in the present case the measures taken by the authorities to have the judgment of 17 September 2002 executed were adequate and sufficient in the circumstances of the case. Therefore, the Court rejects the application as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 July 2021.
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Hasan BakırcıCarlo Ranzoni
Deputy RegistrarPresident
Full & Egal Universal Law Academy