THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2694/04
by Gheorghe and Maria ŢARĂLUNGĂ
against Romania
The European Court of Human Rights (Third Section), sitting on 7 December 2010 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 18 November 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Gheorghe Ţarălungă and Ms Maria Ţarălungă, are Romanian nationals who were born in 1934 and 1936 respectively and live in Bacău. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1991 the applicants brought civil proceedings against their neighbour, alleging that the latter had built a fence and thus abusively occupied a plot of some 40 sq. m of their land. They sought to recover that land and asked the court to settle the boundary between their properties. Witnesses were heard and two expert reports were produced in the proceedings.
4. On 15 May 1991 the Bacău District Court dismissed their action, considering that the evidence did not support their claims.
5. The applicants appealed. On 20 September 1991 the Supreme Court of Justice upheld a request by the applicants to transfer the proceedings to another court due to legitimate doubt as to judges’ objective impartiality.
6. On 7 November 1991 the Vrancea County Court allowed their appeal, quashed the previous judgment and, considering that further evidence should be taken, kept the file for examination. Witnesses were heard and another expert report was produced in the proceedings.
7. On 1 June 1992 the Vrancea County Court, by a final decision, allowed their action. It found that the fence built by the applicants’ neighbour was not straight, but curved, and thus had occupied a part of the applicants’ property. Therefore, in the operative part of its judgment, the court ordered the other party to return that land to the applicants and, in accordance with one of the expert reports, fixed the boundary between the two properties as being the straight line connecting the northern and southern extremities.
8. On 9 September 1992 the applicants sought enforcement of that judgment.
9. On 2 October 1992 the applicants requested the bailiff to adjourn the enforcement. Further attempts of enforcement by the bailiff took place on 4 December 1992 and 26 March 1993. In an official record of 25 May 1993, following a visit on the spot, the bailiff, relying on an error in demarcation, certified the impossibility to draw a straight line between the northern and southern extremities, as provided by the final judgment. The applicants refused to sign the official record.
10. In 1994 the applicants lodged a criminal complaint against their neighbour for non-compliance with court decisions. On 7 December 1994 the public prosecutor found no reason to start criminal proceedings.
11. The applicants further complained about the non-enforcement before different State authorities.
12. On 12 June 1994, 31 October 1995 and 16 October 1996 the Ministry of Justice informed them that the bailiff was not responsible for the delay in execution. Since the execution had not been brought to a conclusion, the existing obstacles were to be settled by an objection to execution introduced under Article 399 et seq. of the Code of Civil Procedure.
13. On 4 August 1994 the Prefecture of Bacău informed the applicants that they may lodge a complaint before the court in charge with the execution or a criminal complaint for disturbance of possession.
14. On 18 June 1995 the judge in charge with the enforcement of civil decisions informed the applicants that they had the possibility to lodge an objection to execution to complain about the discordance between the expert reports produced in the proceedings and the practical situation on the spot.
15. The applicants have not lodged an objection to execution, considering that the President of the Bacău District Court was not impartial.
B. Relevant domestic law
16. The relevant Articles of the Code of Civil Procedure, as amended by Law no. 59/1993, provide:
Article 399
“Any enforcement may be challenged by any aggrieved person or other person concerned...”
Article 400
“Interlocutory applications and any disputes arising between the parties ... over the meaning, scope or application of the operative provisions of a judicial decision which is being executed shall be made to the judicial authority which issued the authority to execute...”
COMPLAINTS
17. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgment of 1 June 1992.
18. The applicants complained under Article 14 of the Convention that, as their neighbour had close relationships with members of the domestic courts, they had been discriminated in their attempts to enforce the final decision of 1 June 1992.
THE LAW
19. The applicants complained about the non-enforcement of the judgment in their favour. They relied on Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
20. The Government submitted that the Court had no jurisdiction ratione temporis to examine the alleged non-enforcement, since the last act of execution was performed on 25 May 1993. They also raised an objection of incompatibility ratione personae, arguing that the applicants were no longer victims within the meaning of Article 34 of the Convention because their right to request the enforcement had been time-barred. Finally, the Government argued that the applicants had not exhausted domestic remedies because, on the one hand, they have not lodged an objection to execution in order to clarify the provisions of the final decision and, on the other hand, they have not brought disciplinary proceedings against the bailiff.
21. The applicants contested those arguments.
22. The Court does not need to address all the issues raised by the parties as the application is in any event inadmissible for the following reasons.
23. The Court reiterates that pursuant to Article 35 § 1 of the Convention an application should be lodged within a period of six months from the date on which the final decision was taken. Furthermore, when the alleged violation constitutes a continuous situation, the six-month time limit cannot start until the continuous situation that gave rise to the alleged violation ends (Sabin Popescu v. Romania, no. 48102/99, § 50, 2 March 2004).
24. The Court also recalls that in the case of Cone v. Romania, (no. 35935/02, § 25, 24 June 2008), it had conceded that a continuous violation could end in a situation when there was an objective impossibility to enforce a judgement and the applicant became aware of this. The Court concluded in that case that the six-month time-limit should be calculated from the date of the opening of the winding-up procedure of the company which had the obligation by virtue of a final judicial decision to reinstate the applicant in that case in her previous position.
25. In the instant case, the Court notes that on 25 May 1993, the bailiff drew up a last enforcement report according to which it was impossible to enforce the judgement (see paragraph 9 above). In another letter addressed to the applicants on 18 June 1995, the judge in charge of the enforcement of civil decisions reiterated to the applicants that there was an error of calculation in the expert report which was relied upon in the final decision of 1 June 1992 and therefore the said decision could not be enforced. By the same letter, the applicants were informed that they could lodge an objection to execution.
26. Taking into account the above, the Court considers that, at the very latest on 18 June 1995, the applicants were informed and aware of the fact that the judgement could not be executed. The Court notes that since that date until 18 November 2003, when they lodged the complaint with the Court, no further enforcement act had been undertaken. From that date, the applicants were thus aware that the authorities in charge of assisting them in the enforcement proceedings considered that there was an objective impossibility to enforce that judgement and that they would not take any other action for enforcement unless the applicants lodged an objection to execution.
27. The Court considers therefore that, as of the very latest 18 June 1995, it must have been apparent to the applicants that unless they undertook the actions prescribed by the authorities, they could not realistically expect any positive development for the enforcement of the judgement in cause.
28. By waiting until November 2003, that is for a period of more than eight years during which there were no intervening events capable of suspending the running time, the applicants in the instant case have failed to lodge their complaint before the Court within the six-month time-limit from the date, when at the latest, they became aware that the public authorities considered that the judgement could not be enforced.
29. It follows that the application must be rejected under Article 35 §§ 1 and 4 for being lodged outside the six-month time-limit.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy