FOURTH SECTION
DECISION
Application no. 55365/09
S.C. S.E.A.C.I.D. S.R.L.
against Romania
The European Court of Human Rights (Fourth Section), sitting on 21 February 2017 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Iulia Motoc,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 8 October 2009,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, S.C. S.E.A.C.I.D. S.R.L., is a Romanian company with its head office registered in Braşov. It is represented before the Court by Mr N.O. Curelea, a lawyer practising in Craiova.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. On 2 February 2008 the applicant company entered into a contract with the Aiţa Mare local authority for the supply of IT services and equipment.
4. After fulfilling its contractual obligations, the applicant company issued invoices, with the first payment being due on 20 April 2008. The local authority refused to pay, stating that the requested sum had not yet been allocated in its yearly budget.
5. The applicant company brought an action to compel the local authority to pay the money it owed, plus interest.
6. On 7 July 2008 the Braşov District Court allowed the applicant company’s claim and ordered the local authority to pay 1,811.9 Romanian lei (RON) (approximately 450 euros (EUR)) and penalties for delayed payment of RON 181 (approximately EUR 45) for each day of delay. It gave the local authority twenty days to pay. The decision became final and binding as the local authority did not bring an action to annul the payment order.
7. The applicant company sent the order to a bailiff as the local authority refused to pay its debt.
8. On 27 April 2009 the bailiff sent a notification to the Covasna Public Finance Department, asking it to seize the local authority’s funds held in the State Treasury account, which it administered.
9. The bailiff had to discontinue the enforcement proceedings as the Public Finance Department replied that the legal requirements for the seizure of the funds had not been met and that the proceedings should be halted for six months.
10. On 13 May 2009, the applicant company brought an action in the Sfântu Gheorghe District Court to approve the bailiff’s request for the seizure of the local authority’s funds.
11. By a final decision of 15 December 2009 the Covasna County Court dismissed the applicant company’s action for the enforcement of the final decision on the grounds that the seizure order communicated by the bailiff had not complied with the law.
12. According to the information submitted by the Government, on 1 October 2009 the applicant company and its debtor concluded an agreement to reschedule the payments. They established the sum to be paid to the applicant company at RON 12,226.88 (of which RON 1,811.9 was the original debt, RON 9,380.9 was late payment penalties for the period between 1 May 2008 and 1 October 2009 and RON 1,034 was bailiffs’ fees).
13. On 8 December 2009 the debtor paid RON 1,811.9 to the applicant company. On 2 and 3 March 2010 respectively, the debtor put the rest of the amount due into an account that was at the applicant company’s disposal. The funds were paid out to the applicant company on 10 March 2010.
14. On 16 March 2010 the bailiff issued a report on closing the enforcement procedure, stating that the debtor had paid all the amounts due.
15. On 8 April 2014 the Bucharest District Court ordered the opening of insolvency proceedings against the applicant company. A company, Pro Management Insolv I.P.U.R.L., was appointed as trustee. However, the applicant company did not inform the Court about the opening of those proceedings or about the full payment of the local authority’s debt.
16. Moreover, in a letter, sent to the Court on 26 April 2010, the applicant company stated that the final judgment of 7 July 2008 (see paragraph 6 above) had not yet been enforced.
COMPLAINT
17. Invoking Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant company complained about the authorities’ failure to comply with the binding and enforceable judgment of 7 July 2008.
THE LAW
18. The applicant company considered that by allegedly failing to comply with the binding and enforceable judgment of 7 July 2008, the authorities have violated its right to access to a court, guaranteed by Article 6 § 1 of the Convention, and its right to the peaceful enjoyment of possessions, protected by Article 1 of Protocol No. 1.
In so far as relevant, these provisions read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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.”
19. In their observations to the Court, the Government raised a preliminary objection of inadmissibility, arguing that in their view the applicant company had lost its victim status as it had obtained the full enforcement of the final judgment of 7 July 2008.
20. Moreover, the Government drew the Court’s attention to the fact that the applicant company had failed to inform the Court that insolvency proceedings had been instituted against it. A company, Pro Management Insolv I.P.U.R.L., which had been appointed as trustee, had also not expressed its interest in continuing the proceedings before the Court on behalf of the applicant company. They therefore requested that the Court declare the application inadmissible on the grounds of abuse of the right of petition.
21. The applicant company did not submit any comments concerning the objections raised by the Government. On 15 October 2015 the applicant company’s trustee sent a letter asking the Court to examine the applicant’s company’s application as initially submitted, without any other comments.
22. The Court will first examine whether the applicant company’s conduct could be considered as an abuse of the right of application.
23. The Court reiterates that an application may be rejected as an abuse of the right of petition under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Vasilevskiy v. Latvia (dec.), no. 73485/01, 10 January 2012). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, 30 September 2014).
24. Turning to the circumstances of the instant case, the Court notes that according to the documents submitted by the Government, by 10 March 2010 the applicant company had received from its debtor, in several instalments, the full amount ordered by the final decision of 7 July 2008 (see paragraph 13 above). However, the applicant company failed to mention that fact to the Court after lodging its application and before the application was communicated to the respondent Government on 18 December 2014. On the contrary, in a letter of 26 April 2010, sent after the final payment was done, the applicant company insisted in stating that the final judgment of 7 July 2008 had not been enforced yet (see paragraph 16 above).
25. The Court further observes that the applicant company did not provide any plausible explanation for its failure to submit that information, which in its opinion relates to the very core of the application’s subject matter.
26. Having regard to the importance of the information at issue for the proper determination of the present case, the Court upholds the Government’s preliminary objection that the applicant company’s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention.
27. In view of the above considerations, the Court considers that it is not necessary to examine the objection concerning the loss by the applicant company of its victim status.
28. The application must therefore be declared inadmissible as a whole as an abuse of the right to application pursuant to 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 16 March 2017.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Full & Egal Universal Law Academy